HONGKONG XINHE INTERNATIONAL INVESTMENT COMPANY LTD -v- BULLSEYE MINING LTD [2021] WASC 212 (28 June 2021)

1. In summary, by Item 1 of the subpoena, the plaintiff seeks production of communications between BDO and the first defendant relating to:

1.1: the timing of the preparation of and audit of the annual financial reports of Bullseye Mining Limited for the financial years ended 30 June 2018, 30 June 2019 and 30 June 2020, respectively;

1.2: the ability of Bullseye Mining Limited to continue as a going concern as at the date of signing of the report on the audit of the financial report for the financial years ended 30 June 2019 and 30 June 2020 respectively;

1.3: the preparation of and audit of statements of the remuneration of each director of Bullseye Mining Limited pursuant to s 202B of the Corporations Act for the financial years ended 30 June 2018 and 30 June 2020 respectively;

1.4: exploration and evaluation expenses incurred by Bullseye Mining Limited and exploration commitments contracted for by Bullseye Mining Limited for the financial years ended 30 June 2019 and 30 June 2020 respectively;

1.5: the carrying amount of Bullseye Mining Limited's exploration and evaluation assets net of impairment as at 30 June 2019 and 30 June 2020 respectively as recorded in the annual financial reports of Bullseye Mining Limited for the financial years ended 30 June 2019 and 30 June 2020 respectively;

1.6: correspondence from Bennett + Co to BDO Audit (WA) Pty Ltd in relation to Bullseye Mining Limited's annual financial reports for the years ended 30 June 2019 and 30 June 2020 respectively and Bullseye Mining Limited's Annual General Meetings in relation to the financial years ended 30 June 2019 and 30 June 2020 respectively.

1. By the subpoena, the plaintiff also seeks production of documents in the following class:

2: File notes made and third party documents obtained or used by BDO Audit (WA) Pty Ltd (ACN 112 284 787) (including by its directors, employees, agents, representatives or advisors) in relation to the matters identified in Item 1.

Legal principles The court's jurisdiction to set aside a subpoena

1. The court has jurisdiction to set aside a subpoena pursuant to the RSC O 36B r 8A(2), which provides as follows:

On a request by the addressee, a party or any other person with a sufficient interest, the court may, by order -

(a) set aside the subpoena or part of it; or

(b) make or vary directions in relation to removing from and returning to the court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or

(c) grant other relief in respect of it.

1. The court may also exercise its inherent jurisdiction to set aside a subpoena, including where the subpoena does not serve a legitimate forensic purpose, it is oppressive or is otherwise an abuse of process.[1]

1. In determining whether a subpoena is for a legitimate forensic purpose, the court will consider whether the documents sought:

(a) give rise to a line of inquiry which is relevant to the issues before the trier of fact;

(b) are required for a fair disposal of the action; and

(c) allow the parties to appraise the strengths and weaknesses of their and their opponent's case.[2]

1. Apparent relevance is a low threshold. Ultimately, the relevance of the documents produced will be a question for determination at trial. It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the issuing party and the recipient of the subpoenas.[3]
2. To determine whether subpoenaed documents are relevant to matters in issue, the court must look to the pleadings.[4] The issuing party must identify expressly and with precision the legitimate forensic purpose for which it seeks access to the documents. The issuing party must then satisfy the court that it is 'on the cards' that the documents would materially assist the issuing party in its case.[5]

1. A subpoena may be an abuse of process of the court when it may be characterised as a 'fishing' exercise (on the basis it does not seek to obtain evidence to support a party's case, but rather to assist that party to discover whether it has a case at all), or where the subpoena has been used for the purpose of obtaining discovery against a third party. A subpoena will also be an abuse of process where it would be oppressive to require a party to comply with the subpoena.[6]
2. Confidentiality is not of itself a ground for setting aside a subpoena.[7] However, confidentiality is a factor to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type of degree of burden placed on those to whom the subpoena is addressed, in relation to the inspection of documents produced.[8]

The parties' submissions First defendant's submissions

1. The first defendant applies to have the subpoena set aside pursuant to the RSC O 36B r 8A or in the exercise of the court's inherent jurisdiction. The first defendant contends that:

(a) the subpoena is an abuse of process and oppressive, and has no legitimate forensic purpose;

(b) the documents sought are not necessary to meet the relevant issues in dispute between the parties;

(c) the subpoena is no more than a 'fishing expedition' by the plaintiff;

(d) the subpoena has been issued for the purpose of obtaining discovery against a third party (an abuse of process) and to circumvent the discovery process; and

(e) many of the documents sought include confidential and potentially privileged documents.

1. The first defendant submits many of the documents sought to be produced are linked to the subject matter of a contested application for discovery made by the plaintiff which was heard by Hill J on 9 February 2021 (discovery application). The first defendant submits that in the disposition of this application the court should take into account any orders made and any reasons for decision in respect of the discovery application.[9]
2. The first defendant submits the subpoena is a fishing expedition for a number of reasons, particularly in relation to the issue of solvency, in respect of the allegations pleaded in the third amended statement of claim that as at 11 May 2020 and 5 November 2020, the first defendant was or was likely to be insolvent.[10]
3. The first defendant submits the following matters lead to the conclusion that the plaintiff is fishing for documents related to the solvency, or insolvency, of the first defendant:

(a) the 'form over substance' introduction of par 65A and amendments to par 158M of the third amended statement of claim;

(b) the bald allegations of insolvency in those paragraphs;

(c) the plaintiff's concession it is unable to provide full particulars of insolvency;

(d) the inadequate nature of the particulars provided; and

(e) the fact the pleaded particulars raise no issue of substance between the parties.[11]

1. The first defendant submits the plaintiff identifies in par 65, par 65A and par 158M of the third amended statement of claim only certain limited matters in the first defendant's Annual Report 2020 as being relevant to the allegations of insolvency.[12] It further submits that by seeking the production of documents going to the question of solvency beyond the scope of the pleadings, the plaintiff seeks to obtain documents in the hope of making a case as to the insolvency of the first defendant as at 11 May 2020 and 5 November 2020, and the court should not permit it to do so.[13]

1. The plaintiff submits the subpoena has a legitimate forensic purpose and its scope is appropriately confined.[14] It submits the conduct of the first defendant's affairs is and has been oppressive within the meaning of s 232 of the Corporations Act.[15] The plaintiff pleads various categories of oppressive conduct including that the first defendant:

(a) contravened the Corporations Act by failing to lodge its annual financial reports on time, failing to hold its Annual General Meetings on time and failing to comply with a request made under s 202B of the Corporations Act;

(b) has denied the first defendant's shareholders their statutory rights to receive information in respect of its affairs on a timely basis;

(c) paid the directors of the first defendant remuneration that was unreasonable in light of the first defendant's financial position and apparent inability to meet tenement expenditure requirements;

(d) was allowed to trade while insolvent by its directors; and

(e) failed to develop its exploration assets and caused those assets to be liable to or at risk of forfeiture.[16]

1. Further, the plaintiff submits the documents sought are apparently relevant to matters in issue in the proceeding, including but not limited to, the allegations as to the first defendant's insolvency.[17]
2. The plaintiff submits the first defendant's submissions:

(a) rely on an excessively narrow view of the pleaded case and construction of 'legitimate forensic purpose'; and

(b) are misconceived in that they contend the plaintiff is required to provide further detailed particulars as to the pleaded insolvency allegations and in the absence of providing such particulars, the plaintiff should not be entitled to inspect documents apparently relevant to preparing such particulars and to additional matters in issue in the proceeding.[18]

1. The plaintiff submits it is not seeking to circumvent the discovery process and is entitled to seek the production of apparently relevant documents from BDO, including documents that may be in the sole possession of the first defendant and BDO.[19] It submits the subpoena has not been issued as a substitute for seeking discovery from BDO under the RSC O 26A, and the terms of the subpoena do not require BDO to form a view as to relevance of documents to the proceeding.[20]
2. Counsel for the plaintiff submits BDO, as the subpoena recipient, makes no complaint as to oppression and the first defendant's submissions regarding oppression should be considered in that light. Further, that the issue of privilege is irrelevant in determining the validity of the subpoena and, together with the question of confidentiality, would more appropriately be considered in the context of inspection of documents produced pursuant to the subpoena.

1. In the section that follows, I have set out the parties' specific submissions in respect of each item of the schedule to the subpoena, followed by my finding as to whether or not that part of the subpoena ought be set aside.

1. The first defendant submits it is vague and uncertain whether the words 'the timing of the preparation of and audit of the annual financial reports...' relate to the timing in respect to the preparation of and the audit of the annual financial reports, or the timing only in respect to the preparation of the annual financial reports.[21] The first defendant also contends the scope of documents requested under Item 1.1 does not give rise to a line of inquiry which is relevant to the issues before the court.[22]
2. The plaintiff submits Item 1.1 is clear and unambiguous and on a plain reading, it is clear the word 'timing' applies in respect of both the preparation and the audit of the financial reports.[23] I accept the plaintiff's submission.
3. The plaintiff refers to par 24 to par 29 of the third amended statement of claim.[24] Those paragraphs relate to allegations concerning the first defendant's failure to lodge annual reports for the financial years ended 30 June 2018 and 30 June 2019 within the required timeframes, thereby contravening s 319 of the Corporations Act. The plaintiff accepts the defendants admit the pleaded contraventions.[25]
4. The plaintiff also refers to its allegations that by reason of delay, the conduct of the first defendant's affairs has been oppressive.[26] The plaintiff submits the defendants do not plead any explanation for the delay and deny such conduct was oppressive.[27]
5. Counsel for the first defendant submits no explanation is necessary nor required to understand the delay, the question to be determined is in relation to oppressiveness, and the reasons for delay are not relevant to whether the pleaded conduct was oppressive.
6. The plaintiff submits the reason for the first defendant's delays, including whether the delays were caused by the first defendant's officers in failing to engage auditors in a timely manner or by reason of the conduct of third parties, are likely to be relevant to whether the pleaded conduct was oppressive.[28] Counsel for the plaintiff submits the timing of the first defendant's instructions to BDO are relevant to the 'quality' of the first defendant's conduct, going to the issue of oppressiveness, particularly in the context of the relief sought by the plaintiff, including the removal of the first defendant's directors.
7. The relevance of the documents sought pursuant to the subpoena is to be determined with reference to the pleadings. Strictly speaking, a prayer for relief does not form part of a pleading. It is more appropriately classified as a submission by a party as to the orders that ought to be made if that party is successful in establishing a cause of action against the other party.[29]
8. The first defendant has admitted the delays in lodging its annual reports for the years in question and the associated contraventions of s 319 of the Corporations Act. In my view, the documents sought pursuant to Item 1.1 are not relevant to the issues in the pleadings, including whether or not the pleaded conduct was oppressive. Item 1.1 of the schedule to the subpoena ought to be set aside.

1. The first defendant submits the allegations in the third amended statement of claim regarding BDO reporting a material uncertainty about the first defendant's ability to continue as a going concern are restricted to what is disclosed in the terms of the annual reports and are admitted by the first defendant in its third re-amended defence filed on 4 February 2021 (third re‑amended defence).[30]
2. Counsel for the first defendant refers to Hill J's findings as set out in her Honour's ex-tempore judgment in respect of the discovery application, the transcript of which is annexed to the second Murdzoski affidavit as 'DM-9'. Her Honour found that if the first defendant's annual reports of 2019 and 2020 refer to a document, that does not mean such documents are automatically relevant to the issues raised by the plaintiff and therefore discoverable by the defendants.[31]
3. Counsel for the first defendant refers to other findings made by Hill J, including that in respect of certain categories of documents, the documents sought were far wider than the issue between the parties on the pleadings, or that it was not clear on the pleadings why the plaintiff sought particular correspondence or why the category was relevant to the issues in the pleadings. The findings and decisions not to order discovery made by Hill J and referred to by counsel for the first defendant pertained to:

(a) documents in relation to the $2.5 million of convertible note funding referred to in Note 28 in the first defendant's 2020 Financial Report;

(b) documents in relation to the entry into or extension, satisfaction (or otherwise) of the conditions precedent, variation or completion of the Subscription Agreements;

(c) correspondence with prospective equity investors in the first defendant since 30 June 2020; and

(d) documentation in relation to the 'advanced negotiations with a number of larger funders with a viewing to securing further development funding for the company in the near term' referred to in the going concern note in the first defendant's 2020 Financial Report.

1. Counsel for the first defendant submits the rulings by Hill J as to the relevance (or perhaps more accurately, irrelevance) of those documents to the issues in the pleadings, should be taken into account in relation to the documents sought pursuant to Item 1.2.
2. Counsel for the first defendant further submits that if regard is had to the relevant paragraphs of the pleadings, including par 65 and par 158K of the third re‑amended defence, the documents sought pursuant to Item 1.2 are far wider than the issue arising on the pleadings, and to some extent have already been the subject of the discovery application.
3. The plaintiff acknowledges the first defendant's admission regarding BDO's opinion about the group's ability to continue as a going concern.[32] Counsel for the plaintiff refers to the qualification in the third re-amended defence that 'Bullseye's auditors described events and conditions which, in their view, indicated the existence of a material uncertainty, which they said may cast doubt about the group's ability to continue as a going concern'. Counsel for the plaintiff submits that plea puts in issue the auditors' opinion, and the basis for the auditors' opinion, to which Item 1.2 of the subpoena relates.
4. The plaintiff also refers to the first defendant's pleaded denials that it was, or was likely to be, insolvent as at 11 May 2020 or 5 November 2020, and the conduct of its affairs was oppressive in that its directors allowed it to trade while insolvent.[33]
5. The plaintiff submits prima facie, the defendants' pleaded position in respect of insolvency has the potential to conflict with BDO's conclusion as to the group's ability to continue as a going concern.[34] While I accept that submission, I do not accept it necessarily follows that the documents sought pursuant to Item 1.2 give rise to a line of inquiry which is relevant to the matters in issue in the pleadings, including in respect of the first defendant's solvency or otherwise.
6. The first defendant has admitted BDO reported a material uncertainty about its ability to continue as a going concern in the relevant annual financial reports. The plaintiff pleads the reported material uncertainty in the relevant annual reports are matters from which insolvency of the first defendant may be inferred. The documents sought by the plaintiff pursuant to Item 1.2 are communications between BDO and the first defendant regarding the first defendant's ability to continue as a going concern as at the date of the relevant annual financial reports. My view is that those documents sought under Item 1.2 do not give rise to a line of inquiry which is relevant to the matters in issue in the pleadings. Item 1.2 of the schedule to the subpoena should be set aside.

1. The first defendant submits the allegations in the third amended statement of claim regarding the s 202B statements are admitted in the third re‑amended defence.[35] The plaintiff acknowledges the pleaded admissions of the defendants in relation to issues pertaining to s 202B of the Corporations Act.[36] The plaintiff submits notwithstanding those admissions, the first defendant denies it contravened s 202B, and that its conduct was oppressive.[37]
2. Counsel for the first defendant submits that by par 32.1 and par 32.2 of the third re‑amended defence, the first defendant pleads that while it did not provide information in precisely the form required by s 202B(2), it provided information similar. It is submitted that therefore, the communications sought under Item 1.3 do not give rise to a line of inquiry under the pleadings nor a legitimate forensic purpose, as the issue is dealt with on the pleadings.
3. The plaintiff submits the reason for the first defendant's failure to comply with the direction from the plaintiff pursuant to s 202B is likely to be relevant to whether the pleaded conduct was oppressive.[38] It submits the communications sought pursuant to Item 1.3 are apparently relevant to and give rise to a line of inquiry in respect of that issue.[39]
4. The plaintiff also submits the communications between BDO and the first defendant relating to the calculation of the directors' remuneration for the purposes of s 202B statements are also apparently relevant. It submits the communications are relevant to whether the directors' remuneration was unreasonable, and whether the conduct of the first defendant's affairs was oppressive by reason of the matters pleaded in par 159.9 of the third amended statement of claim.[40]
5. Counsel for the first defendant submits that given the amounts of director remuneration have been admitted, the amounts themselves are not in dispute. Further, that remuneration is a contractual entitlement, whether the directors' remuneration was reasonable or not is a matter for expert evidence, the issue of calculation does not arise on the pleadings, and therefore there is no legitimate forensic purpose.
6. I do not consider the documents sought pursuant to Item 1.3 to be relevant to matters in issue in the pleadings. The first defendant has admitted the pleaded allegations regarding the s 202B statements, including that the requested statements have not been provided. I do not accept the communications sought pursuant to Item 1.3 give rise to a line of inquiry that is relevant to the plaintiff's pleaded allegations of oppression. In circumstances where the remuneration amounts are not in dispute, it is unclear on the pleadings why the plaintiff seeks communications relating to the calculation of the directors' remuneration, or how the communications are said to give rise to a line of inquiry in respect of the reasonableness of the remuneration. Item 1.3 of the subpoena should be set aside.

1. The first defendant's submissions primarily refer to:

(a) the pleadings as they relate to its mining tenements;

(b) its provision of discovery on 23 December 2020 pursuant to orders made by Hill J in respect of discovery of categories of documents in relation to tenements; and

(c) the plaintiff having deliberately attempted to circumvent the discovery process such that the requests for production of documents pursuant to these items are oppressive and an abuse of process.[41]

1. The plaintiff's submissions primarily refer to:

(a) the portions of the pleadings regarding the applications for expenditure exemptions, and for forfeiture, in relation to tenements held by the first defendant;

(b) the alleged failure by the first defendant to conduct its principal activities of exploration for, and development of, mineral resources in the interests of its members;

(c) the 11 May 2020 and 5 November 2020 insolvency allegations;

(d) alleged oppressive conduct by the first defendant by reason of those matters; and

(e) matters pleaded in the third re‑amended defence, including a denial that the first defendant failed to meet expenditure conditions relating to its tenements; a contention that the first defendant's minimum expenditure commitments as set out in its annual reports require adjustment to take into account pro rata relief and are therefore inaccurate; and that for the 2019 expenditure year, the first defendant expended approximately $1.66 m while the 2019 annual report records expenditure of $570,521, and the 2020 annual report records expenditure of $692,251.[42]

1. Regarding the plaintiff's reliance on the issue of insolvency, counsel for the first defendant submits there is nothing pleaded regarding why expenditure is said to be relevant to insolvency or which goes to the level of 'communications'. Counsel for the first defendant submits that in circumstances where the annual financial reports set out expenditure, the communications sought cannot be relevant nor relate to a legitimate forensic purpose, and are therefore a 'fishing expedition' by the plaintiff.
2. The plaintiff submits it did not seek orders expressly requiring the first defendant to give discovery of the documents sought under these items,[43] and documents discovered by the first defendant did not include any communications with BDO and did not relate to the carrying amount of its exploration and evaluation assets of net impairment.[44]
3. In that regard, counsel for the first defendant submits the plaintiff is now attempting to circumvent the discovery process and accordingly the request is oppressive. In my view, given the plaintiff did not seek orders requiring discovery of the documents sought pursuant to these items, the requests do not circumvent the discovery process and cannot be said to be oppressive on that basis.
4. However, on the pleadings, there is a dispute as to the first defendant's exploration commitments and actual expenditure on exploration for the financial years ended 30 June 2019 and 30 June 2020, and the way in which those amounts are reported in the relevant annual reports.[45] In these circumstances, in my view the documents sought pursuant to Items 1.4 and 1.5 give rise to a line of inquiry which is relevant to the matters in issue in the pleadings. Items 1.4 and 1.5 to the schedule to the subpoena should not be set aside.

1. The plaintiff seeks production of correspondence between BDO and the first defendant relating to correspondence from the plaintiff's solicitors, Bennett + Co to BDO in relation to the first defendant's annual financial reports for the years ended 30 June 2019 and 30 June 2020 and its annual general meetings in relation to those financial years.[46]
2. The plaintiff submits the communications sought relate to its pleaded allegations regarding the conduct of the first defendant's affairs being oppressive in that the defendants contravened s 250T of the Corporations Act in respect of the 2019 and 2020 annual general meetings, which allegations are denied by the defendants.[47]
3. Counsel for the first defendant submits the communications sought are too wide, when regard is had to the paragraphs of the pleadings referred to in the plaintiff's submissions (the majority of which have ultimately been admitted either in the third re‑amended defence or the plaintiff's amended reply to first defendant's re‑amended defence) and the remaining issues arising on the pleadings.
4. In my view, once regard is had to the admissions in the pleadings, the only remaining issue is whether the defendants contravened s 250S and s 250T of the Corporations Act, such that the conduct of the first defendant's affairs has been oppressive.
5. The plaintiff submits the communications between BDO and the first defendant in respect of the matters raised by Bennett + Co are apparently relevant to the issue of oppression, including to the extent they may disclose why BDO only responded to certain requests for information.[48]
6. The plaintiff submits the correspondence from Bennett + Co referred to a number of other matters the subject of the proceeding, including the issue of whether the first defendant would continue as a going concern, and accordingly, the communications sought are also apparently relevant to those issues.[49]
7. I do not accept the communications sought pursuant to Item 1.6 give rise to a line of inquiry which is relevant to the matters in issue in the pleadings, including as to the issue of oppression. The communications sought by the plaintiff are far wider than the issues between the parties on the pleadings, as to the alleged contravention of s 250S and s 250T of the Corporations Act, and whether the conduct of the first defendant's affairs has been oppressive. The correspondence sought between BDO and the first defendant relating to correspondence from Bennett + Co to BDO does not give rise to a relevant line of inquiry. Item 1.6 of the schedule to the subpoena should be set aside.

1. The first defendant submits the meaning of 'third party documents' in Item 2 is vague and uncertain.[50] It submits that for BDO to understand what 'third party documents' the plaintiff seeks production of, those documents should be specifically identified or described to enable individual documents falling within scope to be clearly identified.[51] The first defendant further submits any file note and 'third party document' relating to 'communications' that fall under the topics of documents sought in Items 1.1 to 1.6 is oppressive due to the burden that will be associated with identifying and making a judgment as to whether the document relates to any of the individual communications required to be produced under Item 1.[52]
2. The plaintiff submits the meaning of 'third party documents' is plain and that documents are either received from or on behalf of the entity being audited (ie the first defendant) or from third parties. I accept that submission.[53]
3. The plaintiff further contends the first defendant's submission that Item 2 of the subpoena is oppressive should be rejected. Particularly as BDO has not applied to set aside the subpoena or complained that its terms are oppressive, and previously informed the court it would only require 5 days to comply with the subpoena following the determination of the first defendant's application for the subpoena to be set aside.[54]
4. For the reasons set out above, I have determined that the documents sought pursuant to Items 1.4 and 1.5 give rise to a line of inquiry which is relevant to the matters in issue in the pleadings. In my view, it follows that for those same reasons, file notes made and third party documents obtained or used by BDO in relation to the matters identified in Items 1.4 and 1.5 also give rise to a line of inquiry which is relevant to the matters in issue in the pleadings.
5. Having determined the communications sought pursuant to Items 1.1, 1.2, 1.3 and 1.6 do not give rise to lines of inquiry which are relevant to the matters in issue in the pleadings, I consider that file notes made and third party documents obtained or used by BDO in relation to the matters identified in those items, equally do not give rise to lines of inquiry which are relevant to the matters in issue in the pleadings.
6. Item 2 should be set aside to the extent it relates to Items 1.1, 1.2, 1.3 and 1.6 of the schedule to the subpoena.

1. I find that Items 1.1, 1.2, 1.3 and 1.6 of the schedule to the subpoena should be set aside, together with Item 2 to the extent that it relates to those items. The documents sought pursuant to those items do not serve a legitimate forensic purpose.
2. Items 1.4 and 1.5 of the schedule to the subpoena, together with Item 2 to the extent that it relates to those items, should not be set aside. The time and date for production in relation to the same shall be five business days from the date of publication of these reasons.
3. My preliminary view is that costs should follow the event, and in circumstances where the first defendant has been largely successful in this application, the plaintiff should pay the first defendant's costs of the application.
4. The parties are to confer in relation to the form of final orders and are to file either a minute of consent orders, or competing minutes of proposed orders together with any submissions as to costs, within seven days.

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

[1] Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [26].

[2] Weeks v Nationwide News Pty Ltd [No 3] [2019] WASC 268 [9].

[3] Van Duren v Hammond & Roberts Pty Ltd [2017] WASC 308 [32]; Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] ‑ [21].

[4] Wookey v Quigley [No 5] [2011] WASC 275 [8] - [9].

[5] Weeks v Nationwide News Pty Ltd [No 3] [11].

[6] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 [23].

[7] Western Metropolitan Regional Council v Dicom AWT Operations Pty Ltd [2018] WASC 81 [10].

[8] Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350; Jensen v Nationwide News Pty Ltd [No 6] [48].

[9] First defendant's submissions [6] and [60].

[10] First defendant's submissions [26].

[11] First defendant's submissions [26] and [34].

[12] First defendant's submissions [27] and [35].

[13] First defendant's submissions [36].

[18] Plaintiff's submissions [13] and [14].

[21] First defendant's submissions [40].

[22] First defendant's submissions [41].

[23] Plaintiff's submissions [17] and [18].

[27] Plaintiff's submissions [20.2] and [20.3].

[29] Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280 [7]; Sala Tenna v Di Lena [2020] WASC 426 [39].

[30] First defendant's submissions [42].

[31] Second Murdzoski affidavit page 107.

[35] First defendant's submissions [44].

[36] Plaintiff's submissions [27.1] - [27.3].

[41] First defendant's submissions [47] - [49] and [51].

[42] Plaintiff's submissions [31] and [32].

[45] See [73] ‑ [74] of the third amended statement of claim and the third re-amended defence, [158I.5] ‑ [158I.6] of the third amended statement of claim, and [158I.2] ‑ [158I.3] of the third re‑amended defence.

[50] First defendant's submissions [55].

[51] First defendant's submissions [56].

[52] First defendant's submissions [57].