LIGHTHOUSE EQUITY PTY LTD -v- DALE ALCOCK HOMES PTY LTD [2025] WASC 227 (10 June 2025)

Grounds of the application: Special circumstances exist for the Harman obligation to be dispensed for the purposes of this proceeding as the use of the documents obtained in the other proceedings is reasonably required for the purpose of doing justice in this proceeding, or because of the degree of commonality between the proceedings.[2] (emphases omitted)

1. The plaintiff's application is supported by an affidavit of Marie‑Helene Mallet made and filed 25 March 2025 (Mallet affidavit), to which there was no objection.

1. The plaintiff's application seeks a release for a specific document (amongst others) entitled 'NCC Class 2 General Inspection 273 Fulham Street CLOVERDALE 6105' and dated 23 January 2020 (NCC Report).
2. The NCC Report is pleaded in the plaintiff's statement of claim filed 6 March 2024 (SOC), at particular (i) to [14].
3. Ms Mallet adduced orders made by the State Administrative Tribunal (SAT) on 27 April 2021 (SAT Orders).[3]
4. Order 2 of the SAT Orders appears, on its face, to allow the applicants to the SAT Proceedings (then being Ms Mallet as the first applicant and Lighthouse Equity as the second applicant) to have restricted access to the contents of the NCC Report.
5. If I were otherwise minded in respect of the other documents that are sought to have the Harman undertaking lifted, I would still decline to give leave, particularly on a nunc pro tunc basis, for the plaintiff to be relieved of its Harman obligation over the NCC Report.
6. That is because I consider that the applicant or applicants in the SAT proceedings should make an application to the SAT, and in the course of that, necessarily, will need to disclose to the SAT the circumstances in which it appears that not only may the Harman obligation have been breached, but also that there may have been a breach of the SAT Orders.
7. It seems to me that, no matter the disposition of this application, as a matter of comity and good order, that disclosure and explanation should be given to the SAT, and it should not be taken that this Court is in some way excusing the plaintiff from breaching, if it has, the SAT Orders.
8. I would refuse the application in relation to the NCC Report in any event.

1. The balance of Lighthouse Equity's application does not concern specific documents.
2. Rather, as is apparent from the form of the orders sought, the plaintiff seeks, in effect, an order relieving it of its Harman obligations in full for two sets of proceedings.

1. The first of those proceedings is an arbitration which, as I understand the evidence before me, has been completed.[4]
2. The parties to that arbitration were the plaintiff and the defendant in these proceedings.[5] The purpose for which Lighthouse Equity seeks its proposed order 2 is threefold, as I understand it:
   1. to allow it to seek to reopen, to some degree, the arbitral awards that were made by the arbitrator;[6]
   2. to potentially add parties to this Court's proceedings;[7] and,or
   3. to add new causes of action on the part of the plaintiff against the defendant.[8]
3. Lighthouse Equity asserts, without making submissions by reference to authority, that an application cannot be made to the arbitrator, because it is asserted that the arbitrator is functus officio.[9]
4. It is unclear to me whether that is so, and it is not a matter that has been the subject of any detailed argument before me, and I am not presently convinced that is the case.
5. There is the further possibility that Lighthouse Equity may reach an agreement with the defendant as to the plaintiff either being relieved of its Harman obligation or for there to be, in effect, a joint approach to the arbitrator.
6. Counsel for the defendant submitted that the above course was open to the plaintiff if the plaintiff chose to identify to the defendant with some particularity the documents that might be the subject of that application.[10]
7. The determining factor for me, leaving aside those matters, is that the plaintiff makes plain that what it wishes to do is take documents discovered or produced to it in the arbitration and, although it is not articulated as such, give those documents to strangers to the arbitration, namely Ms Mallet and a strata company involved with the underlying property.
8. In my view, it is one thing as a matter of discretion to allow a party to an arbitration to be relieved of its Harman obligation to use documents against its counterparty to the arbitration. It is quite a different thing for a party to the arbitration to seek this Court's leave to be relieved of its obligation, in order to share the documents with a stranger to the arbitration.
9. On the assumption that either an agreement can be reached with the defendant, or an application can be made to the arbitrator, it seems to me that is clearly the preferable course to be adopted.

1. The second set of documents is in relation to SAT proceedings which are currently on foot.
2. The SAT proceedings are between Ms Mallet as applicant and the defendant as respondent.
3. It appears, and I was told, that Lighthouse Equity was previously a party to the SAT proceedings but was removed from those proceedings in about June 2024.[11]
4. So, Lighthouse Equity is not currently a party to the SAT proceedings, and in effect, what it is seeking today is either:
   1. an order that Ms Mallet be relieved of her Harman obligations as a current party to the SAT proceedings; and,or
   2. it be relieved of its Harman obligations as they existed up to June of 2024.
5. It is unclear to me whether the documents which are sought to be captured by proposed order 1 of the plaintiff's application were impressed with a Harman obligation prior to, or prior to and after, June 2024.
6. Again, what Lighthouse Equity is seeking is to potentially add parties and new causes of action to this proceeding.
7. There is at least the real potential, on the papers before me, that I am being asked to relieve Lighthouse Equity of its Harman obligations, which may have the effect of relieving Ms Mallet of her Harman obligations, although she is not a party in these proceedings.

General observations to both the arbitration and SAT proceedings

1. A further curiosity about Lighthouse Equity's application is that it does not seek to be relieved of the Harman obligation in either the arbitration or the SAT proceedings for its claims as currently pleaded in the SOC.
2. I am told that the documents are not required for the current proceedings,[12] as pleaded, but are required to allow Lighthouse Equity to add, potentially, new defendants, new causes of action, and also to potentially allow Lighthouse Equity to share documents with Ms Mallet, and with the strata company.
3. The plaintiff asserts that the commonality between the SAT proceedings and these proceedings favours the grant, and its amendments to its Chamber Summons expressly raises this.[13]
4. While it is the case, as I understand it, that the arbitration, the SAT proceedings, and these proceedings all concern the one land development, there is no, and can be no, commonality between the case currently pleaded and the documents subject to the application, because, as I have said, the plaintiff says that the documents are not required for the current pleaded case.
5. So, there is no commonality with the current claims. To the extent that there is a wish or a desire on the part of Lighthouse Equity to be relieved of its Harman obligation to share the documents with Ms Mallet and with the strata company, that takes the matter outside of my understanding of 'commonality' within the authorities.

1. I have proceeded on the basis that it is within this Court's power to make, in an appropriate case, an order relieving a party of its Harman obligations arising out of an arbitration, and, for that matter, SAT proceedings.
2. That is, there is, I accept, a general power to do so if special circumstances can be shown which justify dispensing with or modifying the implied obligation.
3. The matter was considered in the Court of Appeal decision in Hancock Prospecting Proprietary Limited v DFD Rhodes Proprietary Limited [No. 2],[14] which both parties cited to me. Understandably, that leads to there being no difference in the principles asserted by the parties as being relevant here.
4. Of particular significance, I consider, to the determination of this application is [89] of that decision.
5. As I understand it, the Court of Appeal proceeded on the basis that this Court could relieve a party of its Harman obligations in either an arbitration or in an earlier or different proceeding.
6. The Court, in [89], identified in subparagraph 2 that a more modern approach is to be taken, so that a Court in the position in which I am sitting may feel less constrained than previously when considering relieving a party of its Harman obligations from other proceedings.
7. The Court goes on to state:
   1. 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. 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.
   2. 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 - 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.[15] (footnotes omitted)
8. In applying the principles, as I understand them, from the Court of Appeal's decision in this case, I do not consider that I have any advantage over either the arbitrator or the SAT for the following reasons:
   1. I do not know the specific documents that may be captured by Lighthouse Equity's Harman obligations. I do not have a list of them, nor do I have categories of them;
   2. what is sought is not orders to further the present proceeding as pleaded, but rather to allow Lighthouse Equity and two strangers to this litigation to consider new causes of action, and new defendants;
   3. there is force in the defendant's submission that, as a matter of substance, what is being proposed is a form of pre-action discovery.[16] The analogy is not perfect or complete, but what it demonstrates is the prospective, and possible only, use of the sought documents in this court; and
   4. I consider that I am in no position to make any assessment as to whether it is in the interests of justice in this Court for the Harman obligations of Lighthouse Equity to be lifted in the circumstances in which the plaintiff's application seeks.
9. So, in those circumstances, I refuse the application brought by the plaintiff's Chamber Summons dated 25 March 2025, and amended in the hearing.
10. As accepted, consequently, the plaintiff should pay the defendant's costs of the application forthwith, to be taxed if not agreed.

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

[1] Plaintiff's Chamber Summons dated 25 March 2025.

[2] Letter from the Plaintiff's solicitor to the Court dated 20 May 2025 [5].

[7] Plaintiff's submissions filed 25 March 2025 [1].

[8] Plaintiff's submissions filed 25 March 2025 [1].

[11] Mallet affidavit [13.1], [13.6].

[13] Letter from the Plaintiff's solicitor to the Court dated 20 May 2025 [4].

[14] Hancock Prospecting Proprietary Limited v DFD Rhodes Proprietary Limited [No. 2] [2023] WASCA 108.

[15] Hancock Prospecting Proprietary Limited v DFD Rhodes Proprietary Limited [No. 2] [89.3], [89.4].