HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [No 2] [2023] WASCA 108 | Case summary

HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [No 2] [2023] WASCA 108 | Case summary | Zoe

[84]

The appellants (HPPL parties) applied for leave to appeal in relation to discovery orders made by the primary judge (Smith J) on 14 April 2023 together with earlier related orders made on 7, 27 and 31 March 2023. The discovery orders were made following application by the fourth and fifth respondents (Bianca and John).[1] Bianca and John are the main contradictors to the application for leave to appeal.
The first and second respondents (Rhodes) and the third respondent (WPPL) appeared on the application for leave to appeal. However, while taking part in the appeal, Rhodes' and WPPL's main concern was to ensure that the hearing and determination of the appeal did not delay the trial of the primary proceedings.
The sixth respondent (Hope), the seventh respondent (Ginia) and the eighth respondent did not take part in the appeal.
The application for leave to appeal raised issues as to the proper construction of orders made by the primary judge on 14 December 2022, whether the primary judge ought to have made a nunc pro tunc order granting Bianca and John permission to use documents subject to a Harman[2] obligation for the purpose of the discovery application, and the primary judge's approach to the discovery application. In this respect, speaking broadly, there are two distinct aspects to the appeal. First, the HPPL parties complain about Bianca and John's use of documents obtained in the Martin Arbitration to ground the discovery application - and, in particular, whether this was permitted by the orders of 14 December 2022 or should have been permitted by the nunc pro tunc order. Second, the HPPL parties raise more specific complaints as to the primary judge's reasoning in allowing the application to proceed in respect of one category and otherwise in making the discovery orders.
The appeal was urgent. The trial of the primary proceedings was, at the time the appeal was heard and determined, listed to commence on 10 July 2023. In the circumstances, having heard the appeal and then having reflected on the parties' submissions, the court determined to pronounce orders on 22 June 2023 with written reasons to follow. While leave to appeal was granted, the appeal was dismissed. In pronouncing those orders the court informed the parties that written reasons for the orders would be published as soon as practicable. These are our reasons.

[85]

The underlying litigation between the parties has been described in a series of decisions in this court.[4] We 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).[5] For the purpose of providing background context to this decision it is not necessary to say any more as to the underlying litigation between the parties.
It should, however, be mentioned that one of the earlier decisions of this court[6] 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][7] 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 and 13 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.
This court dismissed the HPPL parties' appeal against Le Miere J's discovery orders on 2 August 2022.[8]
The discovery orders the subject of the present appeal arise out of Le Miere J's orders of 12 and 13 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 and 13 August 2021.
On 14 December 2021 orders were made to list the primary proceedings for a 60 day trial commencing on 12 June 2023.[9] The trial was later re-listed to commence on 10 July 2023.[10]
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 to which Hope and Ginia are also parties). The primary judge dismissed that application on 14 December 2022.[11] An appeal against the dismissal of the application to stay the proceedings or adjourn the trial was unsuccessful.[12]

[87]

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.
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.[13] 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.[14] While significant conferral steps were taken by the parties, resulting in the production of initial and responsive 'Stern Schedules'[15] in 2021,[16] 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.[17]
In the interim Bianca and John received a large number of documents in the Martin Arbitration, some of which Bianca and John seek to rely upon in the primary proceedings.[18]
The documents obtained by Bianca and John through the Martin Arbitration process include documents sourced from:
1. Disclosure and production by the HPPL parties and Gina.
2. Compliance with subpoenas issued to Herbert Smith Freehills (HSF), Robert Butcher of the law firm Butcher, Paull & Calder, and Alan Camp (a former lawyer and officer of HPPL). (The subpoenas were issued following the grant of leave pursuant to s 27A(1) of the Commercial Arbitration Act 2012 (WA) by Kenneth Martin J in the General Division of the Supreme Court of Western Australia.)
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:

[93]

Orders 1, 2 and 4(a) were made by consent.[23]
Accordingly, while - in the context of the appeal - it was common ground that the Martin Arbitration documents within par 1 of the 14 December 2022 orders were subject to a Harman obligation because they had been disclosed or produced under compulsion in the arbitration,[24] there was no suggestion that the obligation precluded the parties from consenting to an order that the documents be discovered in the primary proceedings.[25] No party suggested that leave of the arbitral tribunal was required before an arbitral party could consent to an order for discovery of the Martin Arbitration documents in the primary proceedings. It was also accepted that the court could order discovery of the documents notwithstanding that they were subject to a Harman obligation because they had been disclosed or produced under compulsion in the arbitration.[26]
There was a defect in the terms of order 1. No annexure A was annexed to the order. Nor, for reasons which are explained at [145] below, was an annexure A provided to the HPPL parties prior to the HPPL parties consenting to order 1[27]eing made.27 The primary judge considered this was immaterial because, as will be seen, Bianca and John proceeded to provide discovery in accordance wit[28]the order.28 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.
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.[29] These documents were derived from documents disclosed by the parties to the Martin Arbitration and the documents produced by HSF, Mr Butcher and Mr Camp in response to the subpoenas issued by the Supreme Court of Western Australia pursuant to the leave granted by Kenneth Martin J.
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. Of the 48 categories, 34 were not in the original Stern Schedule served by Bianca and John in 2021.[30]
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.[31] Thus, in effect, the primary judge was satisfied that Bianca and John used the Martin Arbitration documents to prepare the revised Stern Schedule. Bianca and John accept that they made use of the Martin Arbitration documents that they had been ordered to discover in making application for discovery pursuant to the revised Stern Schedule.[32]
Specifically, in addition to the use of the HPPL parties' documents,[33] senior counsel for the HPPL parties pointed to evidence[34] that in making the application for discovery pursuant to the revised Stern Schedule, Bianca and John formulated categories by reference to documents obtained under compulsion in the arbitration from Gina (as to categories 2B[35] and 2D[36]), HSF (as to categories 32(4) - (6)[37] and 71[38]), Mr Butcher (as to category 47[39]) and Mr Camp (as to categories 46,[40] 55,[41] 55A[42] and 55B[43]).
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.
Among other things, the HPPL parties claimed that in formulating and justifying the categories of documents sought by the revised Stern Schedule:[44]
1. Bianca and John had, in breach of their 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.
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.[45] The primary judge rejected that claim.[46] 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.

[97]

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.
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.[49] 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.[50] 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.[51]
The primary judge considered that the purpose of pars 1 and 2 of the orders was to give the HPPL parties[52] 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).[53] 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.[54] 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.[55]
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.[56]
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.[57] Her Honour stated:

[99]

Orders to that effect, as reproduced above at [33], 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.
These aspects of the primary judge's reasoning and conclusions are challenged by grounds 1 - 4 in the appeal.
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.
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.[58]
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.[59]
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.[60]
These conclusions are challenged by ground 5 in the appeal.
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).
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;[61] but category 55G was not allowed.[62] 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'.[63]
The primary judge's conclusion that discovery should be ordered in respect of the various categories is challenged by ground 6 in the appeal.
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.[64] The HPPL parties have appealed against those orders by appeals CACV/43/2023 and CACV/44/2023.
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'.

[101]

Leaving aside the effect of the orders made on 14 December 2022, there was no contest before the primary judge as to the status of the Martin Arbitration documents. 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.[65]
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.
In this respect the HPPL parties' initial four grounds of appeal concern the findings made in WPPL v HPPL [No 17] (see [33] - [38] 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 breached their Harman obligation by making use of the Martin Arbitration documents, 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.
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.
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.
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.
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 (ground 4(i)).
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) (ground 4(ii)).
3. The variation was beyond power as it contravened the prohibition in s 5 of the Commercial Arbitration Act 2012 (WA) (ground 4(iii)).
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 (ground 4(iv)).
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.
Ground 5 concerns the findings made as to categories 55G and 55J in WPPL v HPPL [No 18] (see [40] - [41] 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).
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 and 13 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.
The HPPL parties acknowledge that the appeal against the discovery orders requires leave to appeal.[66] 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.
None of the grounds of appeal are conceded.
WPPL and Rhodes did not participate in the hearings before the primary judge which resulted in the discovery orders the subject of the appeal.[67] 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.
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 Bianca and John say 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.

[110]

In other words, the implied obligation is no answer to otherwise valid processes of law in other proceedings. Sometimes such processes will be compulsive. But they may also be permissive. Nothing in Mason CJ's statement confines 'the requirements of curial process' to mandatory orders that compel a litigant to take certain steps. The requirements of curial process are determined by what is required to do justice between parties in proceedings before the court. It will include, in an appropriate case, according litigants the ability to use documents and other materials that they are otherwise prohibited from using by reason of the Harman obligation.
Such a 'yielding' (sometimes referred to as an 'over-riding' of the implied obligation)[85] is consistent with the rationale for the Harman obligation. The yielding is explicable on the basis that the disclosure and use of the documents or information otherwise the subject of the implied obligation in the first proceedings is required in the interests of justice in the subsequent proceeding. In this respect the Harman obligation is necessarily subject to other requirements of the law.[86]
Importantly, the implied obligation yields to the curial processes of courts other than the court to whom the obligation is owed. There are, as will be seen (see [80] below), numerous cases in which a second court has made an order for discovery which has the practical effect of over-riding a Harman obligation arising in a different court or tribunal. In this respect it is not necessary for the second court making the discovery order to await an order of the first court or tribunal releasing the obligation - or for the second court to itself make an order dispensing with or modifying the obligation.
As to the second point (ie that the Harman obligation is alterable), the Harman obligation may be 'dispensed with' or 'modified' by the court in appropriate circumstances.[87] This is sometimes referred to as 'relieving' a party from the implied obligation[88] or - more commonly - 'releasing' a party from the implied obligation (such a release bringing an end to the implied obligation). The basis on which the court may do so was explained in Prudential Assurance Co Ltd v Fountain Page Ltd:

[114]

There are multiple single judge decisions in which a court has been asked to make orders dispensing with or modifying a Harman obligation in relation to materials obtained under compulsion in different earlier proceedings - and sometimes different earlier proceedings in a different court or tribunal. In some cases those applications have been successful.[94] In other cases the applications have been unsuccessful.[95] However, with the exception of Transfield Philippines Inc v Pacific Hydro Ltd (which is considered further at [82] - [88] below), the power of a second court to dispense with or modify a Harman obligation arising in another court or tribunal has not been doubted.
Separately, there are many cases where a second court either ordered discovery or inspection (or was willing to entertain such an application) in relation to material the subject of a continuing Harman obligation in a different court or tribunal, ie the second court made (or was prepared to make) an order which had the practical effect of dispensing with or modifying a Harman obligation arising in a different court or tribunal.[96] In one such case Tamberlin J stated that he was not persuaded as a matter of power, discretion or comity that release of the undertaking must or should be first obtained from the original court.[97] And, more directly, in a number of cases it has been accepted by a second court that it has the power to grant leave for documents disclosed under compulsion in earlier proceedings in another court or tribunal to be used in proceedings in the second court.[98]
Accordingly, the preponderance of authority favours the conclusion that a second court may dispense with or modify a Harman obligation arising in a different court or tribunal. This may occur explicitly (by an order permitting use in the subsequent litigation) or in practical effect (by an order in the subsequent litigation requiring action that is contrary to the implied obligation). In both cases the Harman obligation yields to the requirement of the curial process in the subsequent litigation. Transfield Philippines Inc v Pacific Hydro Ltd is the one authority to the contrary. Something must now be said about that decision.
Transfield Philippines Inc v Pacific Hydro Ltd relevantly concerned an application for preliminary discovery. The applicant (T) sought to rely on various disputed documents which it had obtained by subpoena and discovery in the course of an arbitration. The other parties objected to the use of the disputed documents arguing that they were subject to an implied undertaking not to be used other than for the arbitration and that T should not be released from that undertaking. Hollingworth J, sitting in the Supreme Court of Victoria, found that the implied undertaking applied and declined to release the undertaking. In so doing her Honour was not satisfied that the court could release T from the implied undertaking given to the arbitral tribunal.
Hollingworth J stated:

[118]

Insofar as Hollingworth J decided, as a matter of discretion, that she would not grant a release even if there was power to do so, her Honour was critical of T's failure to explain why it could not have applied to the arbitral tribunal to be released from the undertaking - a matter of consequence as Hollingworth J regarded the tribunal as the most appropriate place in which to make the application.[100]
Two related observations may be made as to the conclusion in Transfield. First, the decision is pre-Hearne v Street. Accordingly, in Transfield the question of the power of a second court to dispense with or modify a Harman obligation arising in earlier proceedings in a different court or tribunal is analysed in terms of an implied undertaking given to the arbitral tribunal. Questions of power and comity self-evidently arise where the court asked to release an undertaking is not the repository of the undertaking. However, since Hearne v Street the analysis is to be conducted in a different paradigm - the implied obligation is a substantive legal obligation rather than an implied undertaking.
Accordingly, it is not the case that, in contemplating an order permitting use in subsequent litigation despite the implied obligation, the second court is purporting to interfere with an undertaking given to the first court or tribunal. Rather, the second court is contemplating permitting or requiring use in the interests of justice in the subsequent litigation - a possibility specifically envisaged by the nature of the implied obligation arising in the original court or tribunal.
Second, what was sought in Transfield was T's release from the implied undertaking given to the arbitral tribunal. It was not merely an order permitting use in the subsequent litigation. The order as sought purported to extinguish the implied obligation absolutely. We, like Hollingworth J, are not satisfied that such an order is within the power of the second court. Such an absolute release is, for reasons we will come to, within the exclusive province of the first court or tribunal. But this is no reason to deny the second court's power to cause a Harman obligation to yield in part by permitting or requiring use in the interests of justice in the subsequent litigation.
So understood, Transfield is not inconsistent with the preponderance of authority that a second court may, in the interests of justice, dispense with or modify a Harman obligation arising in a different court or tribunal by causing the implied obligation to yield in either of two ways:
- first, by an order permitting use in the subsequent litigation; or
- second, by an order requiring action in the subsequent litigation that is contrary to the implied obligation.
Moving away from Transfield, a number of conclusions may be drawn from the authorities where a second court has considered the consequences for its proceedings of a subsisting Harman obligation in relation to materials obtained under compulsion in earlier proceedings:
1. Whether material which is subject to a Harman obligation can be used by a party in subsequent litigation is a matter that may potentially impinge on the integrity and authority of two sets of judicial proceedings.[101]
2. It has been suggested - particularly in the older cases - that an application to dispense with or modify the implied obligation should be made in the proceedings in which the obligation arose.[102] In practice, albeit with some exceptions,[103] this guideline is accorded less significance in more recent authorities.
3. This may be because, often, the second court will be in a far better position than the first court to form a view as to the relevance and use of the materials in the subsequent litigation.[104] So too, the second court will generally be in the best position to determine the significance of the important consideration of the likely contribution of the materials to achieving justice in the second court.[105]
4. Where, however, this is not the case, the perceived advantage of the first court will, ordinarily, be a factor in the second court declining to dispense with or modify the implied obligation[106] - allowing the first court to consider any application that may be made to it. The perceived advantage of the first court is likely to be a material consideration, and depending on the circumstances may even be a decisive consideration, in determining whether there are special circumstances which justify dispensing with or modifying the implied obligation. Thus, the circumstances of the case will determine whether and to what extent the first court has an advantage in considering any application to modify the implied obligation.
5. The Harman obligation does not diminish the authority or powers of a second court in subsequent proceedings. A court hearing subsequent litigation has full power and authority to ensure that its decision is reached by reference to all material that is necessary and probative in the discharge of its jurisdiction and powers. The implied obligation cannot restrict or fetter, and was not stated as a restriction or fetter, on a court's powers in relation to its own processes in proceedings properly commenced before the court.[107]
The last consideration is critical in concluding, as we do, that a second court is empowered to dispense with or modify a Harman obligation arising in a different court or tribunal by causing the implied obligation to yield in either of two ways outlined in [88] above.
The fundamental responsibility of a court is to do justice between the parties in the cases that come before it.[108] The court's inherent power to control the conduct of proceedings before it is adapted to that end. An order for permitted or required use of materials in the interests of justice is within the second court's function and powers in exercising its jurisdiction to decide the matter before it and in controlling its process in doing so. The court's inherent power in these respects is, in our view, ample enough to permit or require parties to a proceeding to use materials despite those materials being subject to a Harman obligation arising in earlier proceedings in another court or tribunal. That is all the more so where, as has been seen, the Harman obligation is itself grounded in the interests of justice and contemplates that it may yield to the requirements of curial process in subsequent litigation.
In Elfar (formerly EGS21) v Commonwealth of Australia, having reviewed the authorities, Rangiah J summarised the position as follows:

[120]

We agree that there is a distinction between an application to release the Harman obligation and an application for permission to use materials otherwise the subject of a Harman obligation in subsequent litigation. The former extinguishes the Harman obligation. The latter only modifies the Harman obligation to the extent of the permitted use - the Harman obligation yields in part to the curial order in the subsequent litigation but remains otherwise intact. This explains why a second court may make an order for permitted or required use but will decline to make an order for release of the implied obligation. An order for permitted or required use in the interests of justice in the subsequent litigation is within the second court's jurisdiction and powers in the way previously explained. But a wider order, extinguishing the Harman obligation altogether, is necessarily outside the second court's power. It exceeds what is necessary or incidental to the exercise of the jurisdiction and powers conferred on the second court.
Accordingly, a second court may cause a Harman obligation arising in a different court or tribunal to yield by an order permitting use in the subsequent litigation or by an order requiring action in the subsequent litigation that is contrary to the implied obligation. Each such order necessarily modifies the Harman obligation to the extent of the permitted or required use in the subsequent litigation. The implied obligation no longer binds the relevant party to the extent that the second court permits or requires the use of the materials in the subsequent litigation.
In addition, properly understood, there is no breach of comity where a second court makes orders dispensing with or modifying a Harman obligation in relation to materials obtained under compulsion in earlier proceedings in a different court or tribunal.
The implied obligation will yield to the requirements of curial process in other litigation. Accordingly, the nature of the Harman obligation is such that it contemplates that it may be dispensed with or modified where that is in the interests of justice. In a federal system, where there is a multiplicity of courts and tribunals operating within and across jurisdictions, it is to be expected that a second court will, on occasion, have to make orders in the interests of justice in its proceeding which - to the extent of any permitted or required use - will have the effect of modifying the Harman obligation arising in another court or tribunal.
Moreover, with the exception of use considered to be in the interests of justice in the second proceedings, the second court's order does not diminish the first court's power to take action to address a breach of the Harman obligation that remains owed to the first court or tribunal. And, so far as the second court makes an order permitting or requiring use of materials despite the material being the subject of a Harman obligation, the second court does so only for the purpose of the exercise and control of its own jurisdiction and process; there is no power at large to dispense with or modify the implied obligation owed to the first court or tribunal.

[121]

Something must now be said about the Harman obligation as it applies to arbitral proceedings. There was no dispute in the appeal that the Martin Arbitration documents within par 1 of the 14 December 2022 orders were subject to a Harman obligation because they had been disclosed or produced under compulsion in the arbitration. However, it is not apparent to us that there was agreement as to the scope of the Harman obligation. In particular, the HPPL parties contended that, in the context of arbitral proceedings, the Harman obligation was a contractual obligation owed to the arbitral counterparties as well as the arbitral tribunal.[110]
Senior counsel for the HPPL parties said that this followed from the decision of Mason CJ in Esso Australia Resources Ltd v Plowman. Senior counsel suggested that Mason CJ held it was an implied term of the arbitration agreement that the Harman obligation so applied. We reject that submission. It is not borne out by consideration of Mason CJ's reasons in Esso Australia Resources Ltd v Plowman. The issue in that case was whether an arbitrating party is under an obligation of confidence in relation to documents and information disclosed in, and for the purposes of, a private arbitration. Mason CJ (Dawson and McHugh JJ agreeing) rejected the proposition that an agreement to arbitrate contained an implied term that each party will not disclose information provided in and for the purposes of the arbitration.[111]
Separately, Mason CJ considered whether there was an implied undertaking not to disclose documents made available in an arbitration on discovery in curial proceedings.[112] In this respect his Honour: (1) referred to the implied undertaking arising in the course of discovery in proceedings in a court; (2) made the statement we have reproduced at [71] above; and (3) concluded that a similar obligation arises in arbitration - here referring to Engli[113]authority113 that because parties to an arbitration submit to the possibility that a discovery procedure will apply to their arbitration 'by implication' the parties must be mutually obliged to accord the documents disclosed for the purposes of the arbitration the same confidentiality which would attach to them if they were litigating their dispute.
Mason CJ also contemplated that the Harman obligation arising in an arbitration 'is necessarily subject to the public's legitimate interest in obtaining information about the affairs of public authorities'.[114]
Accordingly, the implied term accepted by Mason CJ provided for mutual acceptance by the arbitral parties that a Harman obligation would arise where documents or information was disclosed under compulsion in the arbitration. But, contrary to the HPPL parties' submission, Mason CJ did not hold that the obligation is also owed to the arbitral counterparties (something that might have implications for dispensing with or modifying the obligation). As the implied obligation that arose in arbitration is a similar obligation to that which arises in curial proceedings it is simply an obligation owed to the arbitral tribunal.
There was no examination in Esso Australia Resources Ltd v Plowman as to how an arbitral tribunal might enforce the implied obligation. Nor was that in question in the present appeal. It is, however, generally accepted that an arbitral tribunal cannot impose a fine or commit a person for contempt.[115] Presumably any enforcement of a Harman obligation owed to an arbitral tribunal will require recourse of some kind to the court under the Commercial Arbitration Act. This, however, is no reason to doubt the existence of the implied obligation in arbitral proceedings - the obligation is grounded in the production of material under compulsion rather than the process of enforcement.[116]
The HPPL parties accepted that the court had power to make a mandatory order requiring disclosure (or use) of documents notwithstanding that the Martin Arbitration documents were subject to an existing Harman obligation - the Harman obligation as it applied in arbitral proceedings yielded to a mandatory court order to the contrary.[117]
While, in this respect, there was no dispute as to the court's power to bring about the yielding of a Harman obligation arising in arbitral proceedings, the HPPL parties drew a distinction between such a mandatory order and a permissive order of the kind made nunc pro tunc by the primary judge. The HPPL parties contended, by ground 4(iii), that the latter type of order infringed s 5 of the Commercial Arbitration Act and was not available as a matter of power[118] (although seemingly accepting that a permissive 'use' type order was available as a matter of power if s 5 was not transgressed).[119]
As has been seen, we are satisfied that a second court may cause a Harman obligation arising in a different court or tribunal to yield by an order permitting or requiring use in the second court's subsequent proceeding. However, that conclusion is necessarily subject to any legislative prohibition to the contrary. The HPPL parties contended by ground 4(iii) that s 5 of the Commercial Arbitration Act had this effect. Ground 4(iii) is addressed at [216] - [236] below.

[122]

The principles that apply on an application for leave to appeal in respect of an interlocutory order are well established. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[120]
In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
The challenge by grounds 5 and 6 cannot sustain the grant of leave to appeal.
Ground 6 is directed to the orders for discovery of the various categories of documents. Ground 5 is directed, in substance, to the order for discovery of category 55J. It will be a rare case in which an order for discovery will sustain a grant of leave to appeal. Seldom will such an order constitute an interference with substantive rights so as to compel the conclusion that substantial injustice will result if the decision is left unreversed, supposing the decision to be wrong.
In Arvind Pty Ltd v Lamers this court reiterated the importance of actively discouraging interlocutory appeals from procedural directions on matters such as discovery in pending proceedings - and, more generally, in exercising restraint in interfering with a case manager's broad discretion on matters of practice and procedure.[121] The court referred to O 1 r 4A of the Rules of the Supreme Court 1971 (WA) (RSC). The court then observed:

[124]

So far as grounds 5 and 6 are concerned, no substantial injustice would be done if the discovery orders remain in place.
The discovery orders do not affect the HPPL parties' substantive rights; they require no more than preparation of a list of documents. There was no suggestion that preparation of the discovery list would be oppressive in itself. To the extent that, in due course, inspection of the documents discovered in the list may be afforded to Bianca and John (and other parties in the primary proceedings) the Harman obligation will apply. Nor was there evidence of any particular reason why the documents ought not to be disclosed for the purpose of the primary proceedings.
The challenge to the discovery orders, by grounds 5 and 6, is concerned with no more than an alleged infringement of the HPPL parties' procedural rights. Even assuming that they were made in error, the discovery orders - and compliance with the discovery orders by the HPPL parties - do not result in substantial injustice such as would mean that it is in the interests of justice that there be leave to appeal. That is all the more so where it has transpired that the discovery orders have resulted in the HPPL parties being required to discover a relatively small number of documents. At the appeal hearing senior counsel for the HPPL parties informed the court that the list of documents served in compliance with the discovery orders identified 91 documents - 72 of those documents being the subject of a privilege claim.[123] So, if the HPPL parties' privilege claims are properly made, the practical effect of the discovery orders will be that the HPPL parties must give inspection of a further 19 documents.
Nor are the merits of grounds 5 and 6 such as to satisfy us that the discovery orders are plainly wrong or attended by sufficient doubt to justify the grant of leave to appeal.
Ground 5 is only of moment insofar as it concerns category 55J (category 55G having been disallowed). Ground 5 proceeds on a misapprehension as to the primary judge's reasons. The primary judge did not simply find that the claim of abuse of process failed because Bianca and John 'could' have formulated the discovery category from an alternate non-privileged source as it was 'open to formulate' the category from a non-privileged document.[124] Instead, reading the primary reasons fairly as a whole, the primary judge was not satisfied that Bianca and John had misused any privileged documents that had been inadvertently disclosed by the HPPL parties.[125] The HPPL parties bore the onus in this respect. The HPPL parties failed to discharge the onus in this respect because they had not negated the available alternative hypothesis as to the source of the request for documents in proposed category 55J.
Ground 6 is similarly based on a mischaracterisation of the primary judge's reasoning process.
In seeking to support ground 6 the HPPL parties emphasised that the primary judge concluded, in relation to many of the categories, that there was a reasonable likelihood that the documents may or will give rise to a forensic benefit.[126] The HPPL parties complained about this in two respects. First, because it failed to apply a standard of direct relevance. Second, because it failed to apply a test of whether the discovery sought was necessary for fairly disposing of the primary proceedings.
There is nothing in the first complaint. The discovery order was sought under O 26 r 7(3)(b)(i) RSC. That is not conditioned by any requirement of direct relevance. It was open to her Honour, as case manager, to determine whether discovery should be limited by a standard of direct relevance. In the circumstances of the primary proceedings there is no discretionary error in not adopting that standard. Insofar as the primary judge was only prepared to allow discovery of targeted requests of single documents or what ought to be a smaller number of specific documents it was plain that the order for discovery would not be oppressive or disproportionate in the context of the primary proceedings. There was, in the circumstances, no requirement to adopt a standard of direct relevance. In any event, the specific standard was a secondary consideration given the 'ultimate test' as adopted by the primary judge (see [120] below).
As to the second complaint, the HPPL parties approach the primary judge's reasoning selectively. In WPPL v HPPL [No 18] the primary judge identified the applicable principles in ordering discovery of specified documents or specified classes of documents.[127] Among other things her Honour stated:

[126]

In WPPL v HPPL [No 19], when evaluating the various discovery categories requested by Bianca and John, the primary judge referred to the principles she had recited in WPPL v HPPL [No 18] and stated that she had regard to those principles in considering each of the proposed categories.[129] We are not satisfied that this was mere window dressing - that being the implicit contention advanced by the HPPL parties. To the contrary, having previously recited the ultimate test and then having said that she had regard to the principles as stated in considering the proposed categories, it is readily apparent that the primary judge adopted as a touchstone whether discovery of the specific documents or categories of documents was necessary for fairly disposing of the proceedings. That understanding then informs what the primary judge meant by the references to a reasonable likelihood of forensic benefit.
The argument as pressed on behalf of the HPPL parties approaches the primary judge's reasons in an overly narrow and pedantic way. We are satisfied, reading the primary judge's reasons fairly and as a whole, that the primary judge did not fail to consider whether the discovery sought was necessary for fairly disposing of the primary proceedings.
For these reasons we would dismiss grounds 5 and 6. We would also refuse leave to appeal were the consolidated appeal based solely on grounds 5 and 6. However, grounds 1 - 4 are qualitatively different to grounds 5 and 6. Grounds 1 - 4 are concerned with the Harman obligation that attached to documents obtained by compulsion in the Martin Arbitration. The nature and importance of the Harman obligation - and the critical function that the Harman obligation performs in the due administration of justice - may mean that it is in the interests of justice that this court grant leave to appeal. That is particularly the case insofar as the HPPL parties suggest, by ground 4(iii), a general limitation on the court's power to relieve a litigant from a Harman obligation arising in respect of an arbitration governed by the Commercial Arbitration Act.
In our view, bearing in mind that the Harman obligation is a substantive legal obligation, grounds 1 - 4 may justify leave to appeal in the present circumstances. Whether, ultimately, there should be leave to appeal depends on the strength of grounds 1 - 4. Accordingly, it is appropriate to examine the merits of grounds 1 - 4 and then revisit the question of leave to appeal.

[129]

The HPPL parties characterised grounds 1 - 3 as raising the question whether, where a person has received documents subject to a Harman obligation in earlier proceedings, the making of a discovery order in subsequent proceedings requiring the person to discover the documents automatically (ie without further order) permits the person to use the documents for its own purposes in the subsequent proceedings.[130]
The HPPL parties bundled their submissions in support of grounds 1 - 3.[131] They said that the primary judge's reasoning was based on par 2 of the orders made 14 December 2022. This, in the HPPL parties' submission, in terms prohibited inspection by non-arbitral parties of the Martin Arbitration documents as discovered. The HPPL parties characterised the primary judge as having reasoned that: (1) the other arbitral parties had a right to use the documents they have inspected pursuant to par 2 of the orders; and (2) the corollary of this right was that Bianca and John could use the Martin Arbitration documents as discovered against the HPPL parties in the application for discovery pursuant to the revised Stern Schedule.
The HPPL parties then submitted that:
1. The Martin Arbitration documents as discovered by Bianca and John had never been inspected by the other arbitral parties - and, besides, the arbitral parties were not the persons proposing to use the documents in the primary proceedings.[132]
2. Even if the Martin Arbitration documents as discovered had been inspected that would not free the other arbitral parties from their Harman obligation in relation to the documents - there was no right to use the documents for the purpose of the proceedings. The HPPL parties also said that Bianca and John were bound by a Harman obligation. It followed that no other arbitral party who obtained inspection (or copies) from them could be in any better position for having done so.[133]
3. In any event, the fact that one party has a right to use the Martin Arbitration documents as discovered does not entail that any other party also has that right notwithstanding a Harman obligation owed by those latter parties. This, it was submitted, amounted to a novel exception to the Harman obligation which is unsound in principle and unjust in practice.[134]
4. The primary judge's ultimate conclusion is contrary to intermediate appellate authority - Sentry Corporation v Peat Marwick Mitchell & Co (a firm)[135] - which ought to be followed.[136]
The HPPL parties' first and second contentions appear to be directed to ground 1; the third and fourth contentions appear to be directed to ground 2.
Bianca and John answered ground 1 by saying that it relied on a misunderstanding of the primary reasons. The primary judge did not find that par 2 of the 14 December 2022 order authorised inspection by the arbitral parties. Rather, this was the consequence of par 1 of the orders and the operation of O 26 r 8 RSC. The primary judge was correct to conclude that a right to inspect confers a right to use discovered documents in proceedings. There was, however, no assumption that any arbitral party had in fact inspected. So far as there was an obligation on Bianca and John to discover, and a right accruing to the arbitral parties to inspect and use the documents so discovered for the purpose of the primary proceedings, the Harman obligation yielded to the requirements of curial process.[137]
As to ground 2, Bianca and John submitted that once the primary judge had concluded that the Harman obligation had been displaced (by giving the arbitral parties a right to use the Martin Arbitration documents as discovered against Bianca and John) it necessarily followed that Bianca and John could reciprocally use them against the other arbitral parties. This, it was said, arose as a matter of the proper construction of pars 1 and 2 of the orders made 14 December 2022. Bianca and John characterised it as a basic application of procedural fairness.[138]
Bianca and John said that the authorities relied on by the HPPL parties are distinguishable.[139]
By notice of contention Bianca and John argued that, properly construed, the orders of 14 December 2022 entitled them to make use of the Martin Arbitration documents as discovered to prepare and pursue the application for discovery pursuant to the revised Stern Schedule. In support of the notice of contention Bianca and John referred to par 3 of the orders of 14 December 2022 and the surrounding circumstances behind the order made on 22 December 2022. Bianca and John submitted that the intent of the 14 December 2022 orders - in particular par 1 of the orders - was to permit them to use the Martin Arbitration documents which they would discover in the primary proceedings. That was said to be 'the whole point' of the orders.[140]
Bianca and John submitted that the hearings of 25 November 2022 and 14 December 2022 established that:[141]
1. Bianca and John were proceeding on the expressed understanding that the Martin Arbitration documents to be discovered under proposed par 1 of the orders would be used by them in the primary proceedings - at the least in refining the Stern Schedule categories to be served pursuant to proposed par 3 of the orders.
2. The HPPL parties shared the understanding that the Martin Arbitration documents discovered under proposed par 1 of the orders could be used by Bianca and John generally in the primary proceedings.
The structure of the orders of 14 December 2022 - in particular the inclusion of par 3 which meant that Bianca and John were to discover the Martin Arbitration documents and provide the revised Stern Schedule at the same time - revealed an intention that Bianca and John were permitted to use the documents they had been ordered to discover (at least as against the other arbitral parties).[142]
In answer to Bianca and John's notice of contention point, the HPPL parties submitted that:
1. There was no textual basis for Bianca and John's preferred construction of the 14 December 2022 orders.[143]
2. The surrounding circumstances, fully examined, did not support Bianca and John's preferred construction.[144] Among other things the HPPL parties relied on Bianca and John's counsel saying nothing to the effect that the orders of 14 December 2022 were necessary for Bianca and John to be able to use the Martin Arbitration documents for their own purposes.[145]
3. The HPPL parties never conceded that the Martin Arbitration documents could be used without a release - properly understood senior counsel for the HPPL parties was simply saying that there was no need for further discovery once pars 1 and 2 of the 14 December 2022 orders were made as Bianca and John could approach the Martin Arbitration arbitral tribunal for a formal release from the Harman obligation so as to use the documents.[146]
4. Bianca and John's subjective understanding as to the effect of the 14 December 2022 orders is irrelevant.[147]
5. The orders of 14 December 2022 were liable to be set aside if Bianca and John's preferred construction is correct. In this respect the HPPL parties relied on the matters raised in support of ground 4. The HPPL parties said that this consequential difficulty with the orders of 14 December 2022 was a compelling reason why the orders should not be construed in the manner contended for by Bianca and John.[148]
The HPPL parties also relied on the absence of 'any mention' of the implied undertaking at the hearing on 14 December 2022 - or the effect of the proposed orders on the implied undertaking.[149]

[130]

Bianca and John's notice of contention sought to support the primary judge's construction of pars 1 and 2 of the orders made 14 December 2022 (ie that Bianca and John were permitted to use the Martin Arbitration documents against the arbitral parties in making their discovery application by the revised Stern Schedule), arguing that this was how a reasonable person in the position of the parties would have understood the orders. Bianca and John relied on the surrounding circumstances and par 3 of the orders. Paragraph 3 of the orders made 14 December 2022 is reproduced at [21] above. It is necessary, however, to develop the surrounding circumstances as relied on by Bianca and John. To this must be added further matters of context relied on by the HPPL parties.
In contending that the surrounding circumstances 'make clear' that the intent behind the 14 December 2022 orders was to permit them to use the Martin Arbitration documents as discovered in the primary proceedings, Bianca and John referred initially to the exchange on 25 November 2022 (see [16] above). On 25 November 2022, as has been seen, counsel for Bianca and John foreshadowed seeking an order for discovery by Bianca and John of the Martin Arbitration documents as '[t]hat way, those documents can be used' and the remaining discovery requests 'will be muc[150]arrowed'.150
This statement occurred immediately after the primary judge had reserved her Honour's decision on the HPPL parties' application to stay the proceedings or adjourn the trial. The primary judge then invited a discussion about the discovery application - in particular, as to whether there needed to be conferral about narrowing the scope of what should be discovered.[151] Senior counsel for the HPPL parties accepted that there should be conferral and suggested that, when her Honour delivered judgment on the stay or adjournment application, the discovery application could be timetabled for a hearing in February 2023.[152]
Accordingly, the statement by counsel for Bianca and John arose in a context where the primary judge and senior counsel for the HPPL parties were contemplating that there would be further conferral about Bianca and John's discovery application.
The statement by counsel for Bianca and John prompted the following exchange between the primary judge and senior counsel for the HPPL parties:

[151]

Grounds 1 and 2 and the notice of contention require consideration of the legal effect of the orders made on 14 December 2022.
The proper construction of the orders must begin with the orders themselves. The orders are reproduced at [21] above. In this respect, on an ordinary and natural reading, the orders provide for the following:
1. By 21 December 2022 Bianca and John were required to give discovery of the documents received by them in the Martin Arbitration that they considered to be relevant to the issues which arose from their defence in the primary proceedings (par 1).
2. Subject to certain matters (ie agreement or further order) the documents so discovered were not to be provided for inspection to non-parties to the Martin Arbitration (ie non-arbitral parties) (par 2).
3. By 21 December 2022 Bianca and John were required to provide a revised Stern Schedule setting out the categories of documents of which they sought discovery from the HPPL parties (par 3).
4. By 1 February 2023 the parties to the Martin Arbitration (ie the arbitral parties) were to confer with a view to reaching agreement as to: (a) the relevance and any objections to inspection of the discovered documents (par 4(a)); and (b) the revised Stern Schedule categories (par 4(b)).
The references to 'arbitral parties' and 'non-arbitral parties' only include those persons who are parties to the primary proceedings. There are many persons who are parties to the Martin Arbitration who are not parties to the primary proceedings. But, self-evidently, the orders of 14 December 2022 are only capable of binding those persons who are parties to the primary proceedings.
Paragraph 1 of the orders brought about a yielding of the Harman obligation otherwise affecting Bianca and John in relation to the documents obtained by them through compulsion in the Martin Arbitration. Paragraph 2 was different in nature and effect. It prevented non-arbitral parties (eg WPPL and Rhodes) from inspecting the Martin Arbitration documents as discovered by Bianca and John. In the absence of such an order all parties to the primary proceedings who were served with Bianca and John's list of documents had a prima facie entitlement to inspect the documents mentioned in the list.[167] The effect of par 2 of the orders was to limit the right of inspection to the parties to the primary proceedings who were arbitral parties. The arbitral parties already had access to the Martin Arbitration documents as discovered in the course of the arbitral proceedings. However, of consequence to ground 1, the right to inspect following compliance with par 1 of the orders (and therefore to take copies of the documents produced for inspection)[168] meant that the inspecting parties could use the Martin Arbitration documents as discovered by Bianca and John in the primary proceedings.
Paragraphs 1, 2 and 4(a) of the orders of 14 December 2022 were consent orders. In determining the meaning of those orders, on their proper construction, it is permissible to have regard to context including surrounding circumstances[169] (much the same as it is permissible to have regard to the surrounding circumstances known to the parties and to the purpose and object of a transaction when construing a commercial contract).[170] However, in having regard to surrounding circumstances, it is relevant to keep in mind that orders are generally framed with a view to their being self-contained and self-explanatory.[171] Also, the surrounding circumstances are not admissible to contradict the language of the orders where that language is unambiguous or susceptible of only one meaning.[172] In this respect the position is no different to the position pertaining to the construction of a commercial contract.[173]
It is not necessary to consider the authorities in relation to when recourse may be had to reasons for decision as an aid to construction of an order. The primary judge did not provide reasons for decision for pars 1 - 4 of the orders made 14 December 2022. However, in construing pars 3 and 4(b) of the orders regard may also be had to the surrounding circumstances in which those orders were made.[174]

[158]

The HPPL parties contended that this passage did not recognise any affirmative right to use documents irrespective of a Harman obligation owed by the party in other proceedings. It was said that her Honour was merely noting the implied obligation of a party who has inspected documents in the proceeding.[178] It is true that McLure P was recording that the inspection process was subject to the implied obligation. But it is implicit in what her Honour said that the right to inspect carried with it the right to use the documents as inspected for the purpose of the proceedings. McLure P referred to the implied obligation because the production of discovered documents for inspection permitted the use of the documents in the proceedings in which they had been discovered but the permitted use went no further (absent some exception to the Harman obligation).
The right to use is, in any event, inherent in the entitlement to obtain copies of inspected documents under O 26 r 8(5) RSC. Absent an order confining use of the documents - and here no such order was made - a party who has a right to inspect and obtain a copy of a discovered document is free to use it in the proceedings.
Ground 1 fails. The primary judge was correct to conclude that, as a result of the orders of 14 December 2022, the arbitral parties other than Bianca and John enjoyed a right to use the Martin Arbitration documents discovered pursuant to par 1 of the orders in the primary proceedings.
Senior counsel for Bianca and John dealt with ground 1 and the notice of contention together.[179] For that reason it is convenient to deal with the notice of contention before turning to ground 2.
The notice of contention has required considerable development of the surrounding circumstances, most of which consists of exchanges between the parties' legal representatives at directions hearings (see [138] - [152] above). While, in a broad sense, this is contextual material that goes to the background to and genesis of the orders of 14 December 2022, it is not particularly helpful in construing the orders. This form of surrounding circumstances is quite unlike reasons for decision. The purpose of a court order is, ordinarily, to give effect to reasons for decision - the reasons for decision are the source of the order. As the order is derived from the reasons the order must conform with the reasons. Hence why it is said that reasons for decision have 'primacy' as a source for int[180]retation of an order.180
The kind of surrounding circumstances relied on by Bianca and John and the HPPL parties are, by contrast, more self-serving - they largely point to contemporaneous statements which might be seen to express what one party's legal representative thought would be the effect of the orders.
It is necessary to view the surrounding circumstances relied on by the parties from an objective perspective. The following points may be made:
1. Paragraphs 1 - 4 of the orders made 14 December 2022 were dealing with two matters: (a) discovery and inspection of Martin Arbitration documents relevant to the issues which arose from Bianca and John's defence in the primary proceedings (pars 1, 2, 4(a)); and (b) the further discovery Bianca and John were seeking from the HPPL parties (pars 3, 4(b)). While, as Bianca and John contend in support of the notice of contention, these two matters might be considered to be linked so far as they were provided for in the same set of orders and contemplated action on the same day, they are also capable of being regarded as being separate and distinct procedural steps.
2. Counsel for Bianca and John evidently considered that the legal effect of the orders would be that Bianca and John would be able to use the Martin Arbitration documents in the primary proceedings (including for the purpose of the discovery application) (see [16], [139], [146], [149] above).
3. Senior counsel for the HPPL parties did not, it may be inferred, have the same understanding as to the intended legal effect of the orders. While, with respect, it is not entirely clear what senior counsel thought would be achieved by the orders, he plainly considered that there was a continuing issue with the Harman obligation and it might be necessary to approach the arbitral tribunal in the Martin Arbitration (see [17] - [18], [142], [144], [147] above). Otherwise senior counsel for the HPPL parties was seeking, in effect, to avoid Bianca and John progressing their further discovery application (see [147] - [150] above). This demonstrates unequivocally that the HPPL parties were not contemplating that Bianca and John could use the Martin Arbitration documents as discovered for the purpose of the application for further discovery let alone more generally - the HPPL parties' position was that no such application for further discovery was warranted. In any case at no time did senior counsel for the HPPL parties acknowledge that the orders would have the legal effect that Bianca and John's counsel believed would ensue. Nor, viewed objectively, did senior counsel appreciate that this was the belief which premised the orders being sought in this form by Bianca and John.
4. In making the orders of 14 December 2022 the primary judge did not refer to or otherwise consider any of the factors usually taken into account in determining whether to dispense with or modify a Harman obligation. There was no mention of the requirement of special circumstances. Nor did her Honour consider whether the use of the Martin Arbitration documents to be discovered by Bianca and John was reasonably required for the purpose of doing justice in the primary proceedings.
The surrounding circumstances do not support Bianca and John's contended for finding that there was a shared understanding (as between Bianca and John and the HPPL parties) that the Martin Arbitration documents as discovered pursuant to par 1 of the 14 December 2022 orders could be used by Bianca and John in the primary proceedings (in particular for the revised Stern Schedule the subject of par 3 of the orders). We accept that counsel for Bianca and John believed this would be the legal effect of the orders. But, viewed objectively, it was not a shared understanding. Senior counsel for the HPPL parties neither acknowledged nor appreciated that this was the intended legal effect of the 14 December 2022 orders.
The lack of any shared understanding as to the legal effect of the orders of 14 December 2022 is one reason why Bianca and John's notice of contention must fail. There are two further reasons. First, there was a complete absence of relevant submissions by the parties, let alone reasons by the primary judge, addressing the issue of dispensing with or modifying the Harman obligation arising in the Martin Arbitration. Such submissions and reasons were to be expected if the orders were to permit Bianca and John to use the discovered documents in the primary proceedings. This aspect of the surrounding circumstances strongly supports the conclusion that the orders on their proper construction do not have the effect contended for by Bianca and John. Second, most importantly, the contended for construction is not open on the text of the orders. The orders are silent on the use that Bianca and John may make of the Martin Arbitration documents in the primary proceedings. No part of the orders says anything about Bianca and John using the Martin Arbitration documents in the primary proceedings for any purpose. Surrounding circumstances (which, on analysis, amount to no more than one party's asserted understanding as to the legal effect of an order) cannot control meaning so as to permit the adoption of a construction that the text of the orders cannot bear.
Bianca and John's notice of contention fails.
The matters raised in disposing of the notice of contention have implications for the disposition of ground 2.
Ground 2 challenges the primary judge's conclusion that:

[160]

This reasoning formed the second step to the primary judge reasoning that the effect of pars 1 and 2 of the orders made 14 December 2022 was to authorise Bianca and John to use the Martin Arbitration documents for the purpose of the discovery application against the HPPL parties.[182]
The primary judge reached these conclusions as a process of construction and interpretation of the orders of 14 December 2022 - specifically pars 1 and 2 of those orders. Her Honour posited that, if - as we accept is the case - arbitral parties other than Bianca and John enjoyed a right to use the Martin Arbitration documents discovered pursuant to par 1 of the orders in the primary proceedings, then as a 'corollary' Bianca and John were permitted to use those documents for the purpose of their discovery application against the HPPL parties pursuant to the revised Stern Schedule. The reasoning is infused with an underlying sentiment of reciprocity and fairness as between the arbitral parties in the context of the primary proceedings.
It is not clear why, on the primary judge's reasoning, Bianca and John's permission to use the Martin Arbitration documents as discovered was limited to authorisation to use for the purpose of the discovery application only. The other arbitral parties' permission to use the Martin Arbitration documents for the purpose of the proceedings was not so limited. In any event it is not readily apparent why the orders are to be construed by reference to some notion of reciprocity and fairness. The Harman obligation will commonly restrict one party's use but not another's; for example, that is usually the position where a party gives discovery of its own documents. There are, however, more fundamental difficulties with the reasoning.
The first difficulty is that the primary judge's reasoning amounts to a rule that - without more - an order that a party to proceedings discover documents subject to a Harman obligation in earlier proceedings has the effect that the discovering party is authorised to use the documents as discovered in the second proceedings. Such a rule, if accepted, would eliminate by a sidewind the protection afforded by the implied obligation and enable a party who is subject to a Harman obligation to avoid the necessity to establish special circumstances so as to dispense with or modify the implied obligation. A party could rid itself of the inconvenience of a Harman obligation in earlier proceedings by simply submitting to an order that it give discovery of the documents it wishes to use in the subsequent proceedings. This would be antithetical to the interests of justice served by the Harman obligation.
The second difficulty is concerned not with principle but rather the terms of the orders made 14 December 2022. For the reasons given in rejecting the notice of contention the primary judge's construction is simply not open on the text of the orders. Apart from requiring Bianca and John to make discovery, the orders of 14 December 2022, on their proper construction, did not address any use that Bianca and John might make of the Martin Arbitration documents as discovered. Considerations of reciprocity and fairness, to the extent they were relevant, might have been capable of bearing on the exercise of discretion whether to make a nunc pro tunc order. They did not sustain a construction of the orders that did not, and could not, arise from the text of the orders. Paragraphs 1 and 2 of the orders did not, on their proper construction, authorise Bianca and John to use the Martin Arbitration documents as discovered for the purpose of the discovery application against the HPPL parties.
Ground 2 succeeds. It follows that ground 3 succeeds.
In upholding ground 2 it has not been necessary to consider Sentry Corporation v Peat Marwick Mitchell & Co (a firm) or the first instance decision relied on by the HPPL parties. The primary judge reached her conclusion as to the effect of pars 1 and 2 of the orders made 14 December 2022 as a matter of the proper construction of the orders. We, respectfully, consider that construction to be in error. Paragraphs 1 and 2 of the orders made 14 December 2022 did not, on their proper construction, authorise Bianca and John to use the Martin Arbitration documents as discovered for the purpose of the discovery application against the HPPL parties. The determination of the proper construction of pars 1 and 2 of the orders made 14 December 2022 is not assisted by the outcomes in earlier cases involving different court orders.

[164]

In written submissions the HPPL parties contend that the nunc pro tunc order should never have been made because it was never sought or raised with them - meaning that the HPPL parties were thereby denied the opportunity to advance evidence and submissions against the order.[183] This is the issue raised by ground 4(i). In the alternative, the HPPL parties say that, even if they were on notice of the nunc pro tunc order, other parties adversely affected by it were not. This is the issue raised by ground 4(ii). In the latter respect the HPPL parties referred to the circumstance that the documents in the Martin Arbitration included documents provided under compulsion by Gina and also HSF, Mr Butcher and Mr Camp.[184]
We will deal with ground 4(i) and then deal with ground 4(ii).
It is true that, in submissions-in-chief in support of the HPPL parties' application seeking to dismiss or stay Bianca and John's discovery application, senior counsel for the HPPL parties noted that there was no application before the primary judge to release the Harman obligation. Senior counsel said that would require 'separate consideration and separate evidence' and that the HPPL parties had not come to meet that application.[185] In response to that observation counsel for Bianca and John said that an application for release was not necessary.[186]
These initial submissions responded to an invitation on the part of the primary judge to senior counsel for the HPPL parties to explain two things: [187] first, why there had been a breach of the Harman obligation? second, why any such breach was not capable of being cured by an order made by the court?
Counsel for Bianca and John responded to the primary judge's invitation in Bianca and John's submissions-in-chief. Counsel said that the primary judge 'can simply make an order' and that he would deal with this at the end of his address.[188] This provoked the following exchange in the form of an interjection by senior counsel for the HPPL parties:

[171]

In support of that order counsel for Bianca and John submitted that there had not been any conscious or contumelious breach of the Harman obligation.[193] Counsel also submitted that the primary judge should not adjourn the matter to give Bianca and John an opportunity to seek a release from the arbitral tribunal in the Martin Arbitration. Three reasons were given in support of that submission: (1) the primary judge was better placed to assess relevance; (2) the HPPL parties would delay the determination - here, among other things, referring to a suggestion on the HPPL parties behalf that third-parties such as HSF, Mr Butcher and Mr Camp had to be consulted. The necessity for such consultation was disputed on the basis that 'there's no legitimate reason that they could possibly object'; and (3) there was no time given the arbitral tribunal's commitments and the date scheduled for commencement of trial.[194] As to the last matter, counsel for Bianca and John had earlier stated that it was not a matter of Bianca and John going back to the arbitral tribunal as this would 'inevitably cause delay and disruption'.[195]
Accordingly, while it is strictly correct that Bianca and John did not seek a permissive order in the terms made by the primary judge, Bianca and John unambiguously sought an order nunc pro tunc requiring them to prepare the revised Stern Schedule with the benefit of the Martin Arbitration documents as discovered pursuant to the 14 December 2022 orders.
In oral submissions before this court senior counsel for the HPPL parties contended that the primary judge confined the HPPL parties' reply to the proper construction of the orders made on 14 December 2022. This provided, according to senior counsel, the reason why the HPPL parties did not respond to Bianca and John's suggestion that the primary judge should make an order requiring use of the Martin Arbitration discovered documents.[196] We reject that submission. The HPPL parties' submission relied on what was said by the primary judge at ts 87 (02/03/2023). The submission takes the primary judge's remark out of context. The primary judge was responding to whether senior counsel for the HPPL parties had to deal with a legal professional privilege question and an abuse of process question.[197] The primary judge had previously made it clear that senior counsel for the HPPL parties should deal with the curative order sought by Bianca and John in reply (see [190] - [191] above). In any case, as will be seen, senior counsel for the HPPL parties did make submissions on whether the primary judge should entertain an informal application of the kind advanced on behalf of Bianca and John.
Senior counsel for the HPPL parties commenced submissions-in-reply immediately after counsel for Bianca and John outlined the order that the primary judge could make if her Honour was against Bianca and John on the proper construction of the orders made 14 December 2022. In the course of the reply submissions senior counsel for the HPPL parties contested the proposition advanced by counsel for Bianca and John that the arbitral tribunal in the Martin Arbitration would not be able to deal with an application permitting use of the Martin Arbitration documents in an efficient way in the time the arbitral tribunal was available.[198]
Otherwise, senior counsel for the HPPL parties addressed the curative order sought by Bianca and John, at least in part, saying:

[177]

Thus, at the heart of the requirement to afford procedural fairness is that the party whose interests are liable to be affected by a decision must be put on notice of the case against him or her, and given an opportunity to respond.[204] Relevantly for present purposes, procedural fairness required that the HPPL parties be put on notice of what was to be determined by the primary judge, and then to be given a reasonable opportunity to be heard, by the HPPL parties presenting their case by evidence, information and submissions.[205]
However, the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice.[206]
There was no denial of procedural fairness to the HPPL parties in the making of the nunc pro tunc order. The HPPL parties were on notice that, in the event Bianca and John's case on the proper construction of the 14 December 2022 orders failed, Bianca and John sought a curative nunc pro tunc order that retrospectively validated their actions in making use of the Martin Arbitration documents as discovered. The HPPL parties were given the opportunity to address Bianca and John's oral application for the nunc pro tunc order. Senior counsel for the HPPL parties availed himself of the opportunity to do so in his reply submissions.
If senior counsel for the HPPL parties thought that - in some way - the opportunity to address Bianca and John's oral application in reply was inadequate, it was open to senior counsel to seek leave to adduce further evidence or to make supplementary written submissions. Senior counsel did not do so.
In written submissions the HPPL parties sought to make a lot out of the circumstance that the primary judge's order merely permitted, and did not require, Bianca and John to use the Martin Arbitration documents.[207] It is true that the primary judge's nunc pro tunc order was not an order that required use in the precise terms raised by counsel for Bianca and John. The order as made was a lesser order that was permissive in nature rather than being expressed in mandatory terms. It was, nevertheless, in the context of the various matters before the primary judge, a nunc pro tunc order of the same kind as that sought on behalf of Bianca and John - one that excused, retrospectively, Bianca and John's use of the Martin Arbitration documents in breach of the Harman obligation. The nunc pro tunc order as made raised the same issues in terms of dispensing with or modifying the Harman obligation in the Martin Arbitration as did the nunc pro tunc order proposed by counsel for Bianca and John. The possibility that the primary judge might make a permissive order of the type made necessarily inhered in the issues to be decided by the primary judge in adjudicating on Bianca and John's oral application.
We are, in any case, not satisfied that there was a denial of procedural fairness to the HPPL parties that resulted in any practical injustice.
The HPPL parties asserted that they were denied the opportunity to advance evidence and submissions against the nunc pro tunc order. The HPPL parties' appellant's case conspicuously avoided any mention of what further evidence or submissions they relied on. Nor did the HPPL parties seek to adduce further evidence on the appeal.
At the appeal hearing senior counsel for the HPPL parties was unable to identify any further evidence that the HPPL parties might have adduced - the HPPL parties having already filed a comprehensive 3,482 page affidavit of one of its solicitors in support of the application that Bianca and John's discovery application be dismissed or stayed as an abuse of process.[208] Accordingly, in this respect, there could be no practical injustice: the HPPL parties were not deprived of an opportunity to adduce evidence insofar as there was no identifiable further evidence that they might have adduced. As to the submissions that would otherwise have been put, senior counsel for the HPPL parties referred only to the point based on s 5 of the Commercial Arbitration Act and the discretionary factors that could be relied on to oppose the nunc pro tunc order.[209]
The point based on s 5 of the Commercial Arbitration Act fails on its merits (see [216] - [236] below). Similarly, as to the discretionary factors, the alleged errors made by the primary judge were the subject of ground 4(iv) and have not been made out (see [237] - [251] below). Again, in both respects, the alleged denial of procedural fairness does not result in any practical injustice.
Ground 4(ii) alleged a denial of procedural fairness to other producing parties, namely, Gina, HSF, Mr Butcher and Mr Camp. There is an air of unreality in this ground. First, it requires the court to put aside that Gina is closely associated with the HPPL parties. Second, it is relied on to set aside the nunc pro tunc order and the discovery orders in their entirety when, as has been seen (see [28] above), the Martin Arbitration documents as sourced from the third parties were only used to formulate a handful of the successful discovery categories (relevantly categories 2B, 32 - in part, 46 - in part, 47 - in part, 55A - in part, 55B and 71).
We accept that, in many circumstances, a third-party who produces documents will need to be accorded notice of an application to dispense with or modify a Harman obligation affecting a party in relation to those documents. The observations of Rares J in City of Swan v McGraw-Hill Companies Inc are apposite even though they are concerned with inspection rather than dispensing with or modifying a Harman obligation:

[183]

The HPPL parties advanced their argument in support of ground 4(iii) in two ways:[211]
1. Insofar as a Harman obligation arose in an arbitration governed by the Commercial Arbitration Act, any dispensing with or modification of the obligation by a court would be an intervention in the arbitral proceedings, and thus is beyond the power of the court by reason of s 5.
2. Alternatively, even if there was no such general prohibition as a matter of law, in the particular circumstances of this case the nunc pro tunc order involved the court intervening in a matter governed by the Act. This argument relied on the terms of PO‑20. The HPPL parties emphasised the portion of PO-20 which [redacted].
Senior counsel for the HPPL parties accepted, however, that a mandatory court order requiring action, thereby causing a Harman obligation arising in arbitral proceedings to yield, would not constitute an intervention in a matter governed by the Commercial Arbitration Act contrary to s 5.[212] Accordingly the proposition in [219.1] above is more limited than first appears. It is only a non-mandatory dispensing with or modification of the Harman obligation (ie a permissive court order) that is contended to constitute an intervention in an arbitration in contravention of s 5 of the Act.
The HPPL parties submitted that there was a fundamental distinction between requiring a party to take a step in court proceedings and permitting a party to do what was otherwise prohibited by a Harman obligation arising in arbitral proceedings. According to the HPPL parties, the latter was simply to override the implied obligation and thus constituted an impermissible intervention.[213]
In support of the alternative argument, the HPPL parties focused on the terms of PO-20. In particular, the HPPL parties emphasised that PO-20 confirmed and declared that [redacted]. The HPPL parties said that PO-20 was made pursuant to s 19(2) of the Commercial Arbitration Act and was therefore a matter governed by the Act. As, in the HPPL parties' submission, the nun pro tunc order had the effect of overriding PO-20, the order was said to be beyond the power of the court as it contravened s 5's prohibition on intervening in matters governed by the Act.[214]
The operation of s 5 of the Commercial Arbitration Act was considered by Quinlan CJ (Beech & Vaughan JJA agreeing) in HPPL v Rhodes 1st Stay Appeal.[215] Quinlan CJ observed that:
1. The purpose and effect of s 5 is not to prevent the courts from exercising their ordinary jurisdiction in relation to disputes between persons who are not parties to arbitration agreements.[216]
2. Where a court proceeds to hear and determine a dispute that is not 'a matter which is the subject of an arbitration agreement', the fact that the resolution of that dispute may have some practical or legal effect on a party to an arbitration agreement does not involve the court 'intervening' in a matter that is subject to the Act.[217]
3. In the context of s 5 the word 'intervene' refers to the court 'coming into' the arbitral process otherwise than in accordance with the Act.[218] The word 'matters' in s 5 is used in the sense of 'circumstances or things regulated by the Act'.[219]
4. Section 5 is intended to reflect and give effect to the precept that, in relation to the involvement of courts in the conduct of arbitrations under the Act, the Commercial Arbitration Act is intended to be a code in relation to matters governed by the Act.[220] Its purpose is to confirm that where a particular matter, involving the courts, is dealt with in the Act ('matters governed by this Act'), the court's powers are to be determined by, and only by, the provisions of the Act.[221]
In relation to the last matter, Quinlan CJ endorsed earlier authority that the intention of s 5 is:

[185]

We do not accept that the nunc pro tunc order was beyond the power of the primary court because the order contravened s 5 of Commercial Arbitration Act. The nunc pro tunc order did not constitute an intervention in a matter governed by the Act within the meaning and for the purpose of s 5.
The starting point in evaluating ground 4(iii) is to identify the relevant 'matter governed by the Act' in which the court was said to have intervened in contravention of s 5.
As to the more general argument summarised at [219.1] above, the HPPL parties pointed to s 19(2) and s 17(3)(b) of the Commercial Arbitration Act. The former is a general power enabling an arbitral tribunal to conduct the arbitral proceedings as the tribunal considers appropriate; the latter is a specific power enabling the tribunal to make orders with respect to the discovery of documents and interrogatories. In substance the contention was that, by the nunc pro tunc order, the court had intervened in the process adopted by the Martin Arbitration tribunal for the compulsory disclosure or other production of documents in the conduct of the arbitration.
The alternative argument (see [219.2] above) relied on the terms of PO-20. It was said that PO-20 was itself a 'matter governed by the Act' and that, by the nunc pro tunc order, the court had intervened in PO-20. However, once the true nature of PO-20 is appreciated (see [230.1] below), the alternate argument is no more than an extension of the general argument based on the arbitral tribunal in the Martin Arbitration having expressly recognised the existence of the Harman obligation as it applied to the arbitral parties. This is inevitably the position where, properly understood, PO-20 is itself no more than the result of the process adopted in the Martin Arbitration for the compulsory disclosure or other production of documents.
In the circumstances it is possible to consider both arguments together.
In considering the issues raised by ground 4(iii) it is important to be clear about the nature of PO-20 in the Martin Arbitration (as made by the arbitral tribunal) and the nature of the nunc pro tunc order. Relevantly:
1. PO-20, while an order falling within the broad powers of the arbitral tribunal,[223] is confirmatory and declaratory. The arbitral tribunal in the Martin Arbitration did not bring the implied obligation into existence by making PO-20. The Harman obligation is a substantive legal obligation which arises by operation of law. The arbitral tribunal did no more than recognise the implied obligation as it applied in the arbitral proceedings as a matter of substantive law.
2. The nunc pro tunc order is not an absolute release from the Harman obligation. The court's order does not purport to set aside, contradict or vary the arbitral tribunal's recognition of the implied obligation. Rather, the nunc pro tunc order permits a limited use of the Martin Arbitration documents in and for the purpose of the primary proceedings. It did so in the course of the primary court exercising and controlling its own jurisdiction and process. The nunc pro tunc order was not directed to PO-20 or, more generally, to the process adopted by the Martin Arbitration tribunal for the compulsory disclosure or other production of documents in the conduct of the arbitration.
The implied obligation as recognised by the arbitral tribunal in the Martin Arbitration yields to the requirements of curial process in other litigation. In this respect, as previously noted, the HPPL parties accepted that a mandatory court order - such as a discovery order - would not contravene s 5 of the Commercial Arbitration Act (see [220] above).
An order permitting use in the primary proceedings (that being, at bottom, the essential character of the nunc pro tunc order) is no less a requirement of curial process. The order authorising use of the Martin Arbitration documents was made by the primary judge in the interests of justice in the exercise of the court's jurisdiction and powers to determine the primary proceedings. For the reasons developed at length in addressing the power of a second court to bring about a 'yielding' or to order that a Harman obligation in another court or tribunal be 'dispensed with' or 'modified', neither principle nor authority supports the hard distinction contended for by the HPPL parties between what is mandated and what is permitted by the second court. Both kinds of order are within power for the second court as things done in the interests of justice in the subsequent litigation.
In the same way that a mandatory order has an incidental or collateral effect of causing the implied obligation to partially yield, so too does a permissive order. Neither kind of order involves the court 'coming into' the arbitral process in the sense described by Quinlan CJ in HPPL v Rhodes 1st Stay Appeal. To the contrary the court is entirely concerned with the conduct of its own processes in the proceedings before the court. Neither kind of order involves a prohibited intervention in contravention of s 5 of the Commercial Arbitration Act.
Section 5 of the Commercial Arbitration Act does not operate to prevent the court from performing its function and exercising its powers, in the interests of justice, by controlling the conduct of proceedings before it. The prohibition is on intervention (ie coming into the arbitral process) otherwise than in accordance with the Act. To adapt what was said by Quinlan CJ in HPPL v Rhodes 1st Stay Appeal, where, in hearing and determining curial proceedings, steps taken by the court in the resolution of the dispute before it have or may have some practical or legal effect on a party to arbitral proceedings, the court is not thereby intervening in a matter governed by the Commercial Arbitration Act. More specifically, in the context of the present appeal, in controlling the conduct of the primary proceedings by permitting the use of the Martin Arbitration discovered documents, the court does not intervene in a matter governed by the Act merely because the court's order has an incidental or collateral 'yielding' effect on the Harman obligation arising in the arbitral proceedings. That is all the more so where it is an accepted feature of the implied obligation as recognised by the arbitral tribunal in the Martin Arbitration that it yields to the requirements of curial process in other litigation.
There is, in these respects, a parallel between the reasons why the primary court's nunc pro tunc order is not a prohibited interference in a matter governed by the Commercial Arbitration Act and the reasons why there is no breach of comity where a second court makes orders dispensing with or modifying a Harman obligation in relation to materials obtained under compulsion in earlier proceedings in a different court or tribunal (see [95] - [97] above). The nature of the Harman obligation is such that it necessarily contemplates that the obligation may be dispensed with or modified where that is in the interests of justice - and that may occur by order of a different court.
Ground 4(iii) fails.

[188]

This purported ground of appeal is not framed so as to assert a discretionary error of the kind justifying appellate intervention as explained in House v The King.[224] That alone is sufficient to dismiss ground 4(iv). This court considers whether there was error in the primary court by reference to grounds of appeal. The provision of proper grounds of appeal which identify material error by the primary court is fundamental to the exercise of the court's appellate function.
As explained in submissions, however, the HPPL parties assert a failure to consider material considerations. Senior counsel for the HPPL parties characterised the primary consideration which the judge failed to consider as being that 'there was no explanation for why [Bianca and John] hadn't approached the [arbitral] tribunal, and no reason why they could not have approached the tribunal for a release'.[225] The HPPL parties also identified as material considerations which were not taken into account: (1) the position of the third-parties who produced the documents; and (2) the likely contribution of the specific documents to achieving justice in the primary proceeding.[226]
The primary judge cannot be said to have failed to consider that there was 'no explanation' for why Bianca and John had not approached the arbitral tribunal in the Martin Arbitration to dispense with or modify the Harman obligation - this contention must fail because there was an explanation. The premise for the HPPL parties' contention is misconceived.
In support of Bianca and John's submission that the primary judge should not adjourn the primary proceeding to give Bianca and John an opportunity to go back to the arbitral tribunal in the Martin Arbitration to seek a release, counsel for Bianca and John pointed to a number of matters. The first was that, in principle, the question should be dealt with by the court, rather than the arbitral tribunal, because the court was fully apprised of the issues in the primary proceedings. In this regard, counsel referred to what was said by Pagone J in Griffiths v Duggan [No 2] (see [89[227]] above).227 Second, counsel pointed to the delay and practical problems arising from dealing with the question of dispensing with or modifying the implied obligation in the manner advocated by the HPPL parties, namely, document by document or class of document by class of document, and after hearing from the parties who produced the documents. There was said to be no legitimate reason why any of the third-party producers of documents could poss[228]y object.228 The third was expressed as follows:

[190]

In reply, senior counsel for the HPPL parties said that they did not accept what had been said by counsel for Bianca and John to the effect that the arbitral tribunal would not be able to deal with the application in an efficient way in the time that is available. The HPPL parties submitted that the tribunal deals with most matters of this kind on the papers and was likely to determine that submissions be exchanged and then have what might be a shorter oral argument. Senior counsel further submitted that there were no obstacles to Bianca and John approaching the tribunal in November or December 2022 and there was no obstacle to now approaching the tribunal. Thus, according to the HPPL parties, the primary judge should not entertain any informal application for an order permitting use.[230]
As can be seen from these passages, contrary to the premise of this aspect of ground 4(iv), Bianca and John's counsel did explain why they had not approached the arbitral tribunal in the Martin Arbitration.
The fact that the explanation was given by counsel, and was not in the form of an affidavit, did not mean that there was no explanation. A complaint that the primary judge erred in acting on what was said by counsel in the absence of sworn evidence is a complaint of a different nature from a complaint of a failure to take into account a material consideration. In any event, in circumstances where counsel's submissions reflected a matter that evidently would have been the subject of communication by a legal practitioner, rather than by the parties themselves, the primary judge was not obliged to reject what had been said by counsel for Bianca and John. Moreover, many of the matters to which Bianca and John's counsel pointed were matters of submission not requiring evidence. The weighing of the competing submissions in this regard was a matter for the primary judge.
For these reasons, there is no substance in the HPPL parties' contention that the primary judge failed to take into account the absence of an explanation for why Bianca and John had not sought a release from the arbitral tribunal. The contention fails because there was an explanation.
The primary judge did not fail to consider the position of the parties who had produced the documents. As already explained in dealing with ground 4(ii), bearing in mind that what was contemplated was no more than use by Bianca and John - who already had the documents - in formulating additional categories of discovery to be sought from the HPPL parties, the primary judge was not obliged to seek submissions from the third-party producing parties. The primary judge heard competing submissions as to whether those parties needed to be heard before making an order as to use by Bianca and John. It cannot be inferred that her Honour failed to consider those submissions. Rather, the primary judge resolved the question as to those parties adversely to the HPPL parties.
In any case, the primary judge did not fail to consider the position of the third-party producers who produced some of the Martin Arbitration documents. To the contrary, the primary reasons make clear that her Honour considered that such third-parties should be heard before their interests were adversely affected by non‑arbitral parties obtaining access to the documents.[231]
Finally, the primary judge cannot be said to have failed to consider the likely contribution of the specific documents to achieving justice in the primary proceedings.
This element of the HPPL parties' argument in support of ground 4(iv), understood in light of the submissions made to the primary judge, appears to be founded on the fact that the judge did not consider, document by document or class of document by class of document, the likely contribution of the Martin Arbitration documents to the achieving of justice in the primary proceedings. There is no inflexible rule that, in all cases, the court must consider this question document by document or class by class. As already emphasised, all that was being authorised by the nunc pro tunc order was the use of the Martin Arbitration documents to formulate additional discovery categories. In coming to the view that such use was appropriate, it was not necessary for the primary judge to give individual consideration to which documents would be likely to be used to formulate additional discovery categories. Indeed, for the primary judge to have done so would have been time consuming and inefficient and contrary to the objects of positive case flow management as enshrined in O 1 r 4B(1)(b) - (e) RSC.
In this respect, the position has some analogy with Alcoa of Australia Ltd v Apache Energy Ltd in which this court rejected a contention that the case manager could not make confidentiality orders on the production of discovered documents unless it was done on a document by document basis. In rejecting that contention, this court observed that to erect such a requirement would be to deprive the court of a flexibility that is essential to achieving the case management objectives enabling this court to retain control of its processes, procedures and limited resources.[232]
Ground 4(iv) fails. It follows that ground 4 fails.

[216]

On 14 June 2023, the court heard the appellants' application for leave to appeal in relation to discovery orders and related orders made by the primary judge. The fourth and fifth respondents (Bianca and John) were the main contradictors to the application. On 22 June 2023, we made the following orders:
1. The appellants have leave to appeal in relation to the orders the subject of the consolidated appeals.
2. The consolidated appeals are dismissed.
3. Orders 1 and 2 of the orders made by Vaughan JA on 25 May 2023 are discharged.
4. The costs of the consolidated appeals are reserved.
5. Upon the court publishing its written reasons for these orders the parties are to confer with a view to agreeing orders as to the costs of the consolidated appeals. On reaching an agreement as to the costs of the consolidated appeals, the parties are to file a consent notice as to the costs. If the parties are unable to reach an agreement as to the costs of the consolidated appeals, any party may, within 1 month after the publication of the court's written reasons, apply to relist the consolidated appeals for a hearing to determine the costs of the consolidated appeals.
On 6 July 2023, the court published reasons for those orders: Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2].[233] We adopt the terminology and abbreviations used in those reasons.
In accordance with par 5 of the court's orders of 22 June 2023, Bianca and John applied for orders facilitating the determination of the costs of the appeal. Bianca and John and the appellants were of the view that the matter should be determined on the papers and the court so ordered.
On 25 August 2023, the appellants (the HPPL parties), on the one hand, and Bianca and John, on the other hand, filed competing minutes of proposed orders as to the costs of the appeal. The other respondents did not seek to be heard on the costs of the appeal.
The HPPL parties propose an order that they pay 80% of the first to fifth respondents' costs of and incidental to the appeal.
Bianca and John propose an order in the following terms. The HPPL parties pay Bianca and John's costs of and incidental to the appeal, to be assessed if not agreed, any such assessment to be undertaken:

[225]

The principles to be applied in considering whether to make a special costs order pursuant to s 141(3) of the Uniform Act are well established. Those principles were outlined by this court in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2],[236] a decision concerning the now repealed s 280 of the Legal Profession Act 2008 (WA), which was in materially identical terms to s 141 of the Uniform Act.
Before the court can exercise its power under s 141(3), the court must form an opinion with two components: first, that the maximum amounts allowable under the relevant scale items are inadequate in the sense that there is a fairly arguable case that, on an assessment, costs may properly be allowed in an amount greater than the maximum amount; and secondly, that the inadequacy of the costs allowable under the costs determination arises because of the unusual difficulty, complexity or importance of the matter. These issues are addressed as a matter of impression, rather than by way of a detailed evaluation. The fact that a party incurred greater costs than those allowable under the relevant determination does not of itself establish a fairly arguable case to the relevant effect.
In support of their application for a special costs order, Bianca and John submit that ground 4 'raised difficult and complex issues of law and was of significant substantive importance, as reflected by the court's detailed reasoning'.[237]
For the reasons that follow, we do not accept that the court should make a special costs order in the terms sought by Bianca and John.
As is apparent from [16] above, Bianca and John's submissions focus on ground 4. In some cases, the unusual difficulty or complexity of one of several grounds of appeal may sustain a conclusion that the appeal as a whole is properly so characterised. Nevertheless, it must be borne in mind that the question to which s 141(3) directs attention is the proper characterisation of the appeal as a whole, rather than whether issues raised by one ground are properly so characterised. Thus, for example, in Strzelecki Holdings Pty Ltd v Jorgensen, this court accepted that some issues in the relevant proceedings were properly characterised as of importance and complexity but was not persuaded that the proceedings as a whole could be described as involving unusual difficulty, complexity or[238]portance.238
In the present case, grounds 1 ‑ 3 concerned the proper construction of the primary judge's orders, while grounds 5 and 6 asserted specific errors in the judge's discretion in making discovery orders. Nothing in the issues raised by those grounds was complex or unusually difficult. The same is true of the question of leave to appeal, which occupied a portion of Bianca and John's written and oral submissions. Moreover, ground 4 itself had four strands, only one of which concerned the matters to which Bianca and John point in support of a special costs order. The first two strands raised questions of procedural fairness. Determination of those strands required some detailed attention to the course of the primary proceedings, but the issues so raised cannot properly be characterised as complex or unusually difficult. Nor was there anything complex or unusually difficult about the issues raised by the fourth strand, which alleged errors in the judge's exercise of discretion.
The question of whether the appeal is properly characterised as complex, unusually difficult or important is concerned with the issues raised by the parties and arising in the course of the hearing of the appeal. In other words, the enquiry as to whether the appeal has the requisite character is directed to the issues with which the successful party was required to deal, and did deal, in the appeal. The court's reasons on the appeal will often reflect those issues and so provide a strong indication as to the character of the appeal for the purposes of s 141(3). However, as this case illustrates - as explained below - that will not always be so.
Viewed in this framework, having regard to the submissions advanced by the parties and the conduct of the hearing of the appeal, we are not satisfied that the issues arising in relation to the third strand of ground 4 sustain the characterisation of this appeal as a whole as complex or unusually difficult. Bianca and John's written submissions in relation to those issues occupied less than 10% of their written submissions. Their oral submissions on those issues occupied less than 25% of their oral submissions.
As already noted, in support of their application for special costs orders, Bianca and John pointed to the comprehensive analysis of the authorities in this court's reasons. However, the court's reasons traverse the authorities in a manner and to an extent that went materially beyond the analysis undertaken in the parties' submissions.
For these reasons, we are not persuaded that the appeal is properly characterised, for the purpose of s 141(3) of the Uniform Act, as complex or unusually difficult.
Nor are we persuaded that the appeal, as it was argued, is properly characterised as important. In their submissions in opposition to the appeal, Bianca and John correctly emphasised that this was an interlocutory appeal against a case management decision.[239] Their submissions described the appeal as 'devoid of any merit or any point of principle'[240] and as 'turn[ing] upon the proper construction of discovery orders made below and upon well‑established principles'.[241] Those submissions reflected the manner in which Bianca and John conducted the appeal. To be clear, in so observing, we make no criticism of Bianca and John's approach to the conduct of this appeal. That approach was consistent with the nature of the appeal, which challenged the primary judge's case management decisions.
For these reasons, we are not satisfied that any inadequacy of the costs allowable under the 2022 Scale in relation to the appeal arises because of the unusual difficulty, complexity or importance of the appeal. Consequently, we decline to make any special costs order.

HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [No 2] [2023] WASCA 108 (6 July 2023)

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HANCOCK PROSPECTING PTY LTD -v- DFD RHODES PTY LTD [No 2] [2023] WASCA 108 (28 September 2023)

Legislation Cited (4)

Cases Cited (26)