MINERAL RESOURCES LTD -v- DESTEC PTY LTD [No 6] [2025] WASC 264 (3 July 2025)

(a) whether the defendants have discharged their onus in establishing that the documents over which orders are sought are confidential;

(b) whether Mr Holstein should be entitled to inspect the confidential documents; and

(c) how access to the confidential documents should be provided.

1. In support of the application, the defendants relied on an affidavit of Stephen Leslie Wyatt filed 3 June 2025.
2. In opposing the application, the plaintiffs relied on two affidavits of Andrew James Filing: a confidential affidavit filed 11 June 2025 and an open affidavit filed 12 June 2025.

Are the documents over which confidentiality orders are sought confidential?

1. The Schedule itemises 59 separate documents over which confidentiality orders are sought. Broadly speaking, these documents comprise:

(a) design drawings of the Destec plant (items 1 - 49 of the schedule); and

(b) photographs of the Destec plant (items 50 - 59 of the schedule).

1. These documents are annexed to both of the Confidential Affidavits.
2. The legal principles that govern an application pursuant to O 67B r 5(3) of the Rules of the Supreme Court 1971 (WA) (Rules) are well known and can be summarised as follows.[4]

(a) The onus of establishing the claim for confidentiality is on the party making the claim.

(b) If the documents are established to be confidential, the question as to what orders should be made by the court is a balancing exercise.

(c) In determining where the balance lies, the court will take into account a range of factors including: the nature and content of the confidential information, as well as its age; the extent to which the information could be used to further a party's commercial interests; and what measures can be put in place to protect the confidentiality of the information from disclosure.

1. Mr Wyatt's affidavit outlines what he contends are the unique features of Destec plant, namely that it is modular, pre-wired, pre‑commissioned, and fully operational before it departs the Destec factory. This is said to be unique for a plant with the capacity to process 10 ‑ 15 million tonnes per annum. He says that the design drawings:

(a) set out these unique features;

(b) illustrate how the components intersect with each other to form the Destec plant as a whole; and

(c) show the site plan, including the bespoke concrete foundations, for the Destec plant as constructed for Rio Tinto.

1. The defendants say that unless confidentiality orders are made, it would be possible for the plaintiffs (or other trade rivals) to use this information to modify or improve the design of their existing crushing plants or to copy the Destec plant.
2. The Destec plant is the subject of a patent application filed on 23 June 2021. Mr Wyatt says that this application does not descend to the level of detail contained in the design drawings. On this basis, the defendants deny that the design drawings contain information that is in the public domain.
3. The plaintiffs do not accept the design documents are or remain confidential. In support of their contention that the information in these documents is in the public domain, the plaintiffs adduced, on a confidential basis, a report of Fidel Gonzalez, a mechanical engineer.[5] Mr Gonzalez compared the information contained in the patent filed by the defendants to the information contained in a number of the annexures to Mr Sadler's confidential affidavit.
4. For the following reasons, it is my view that the design drawings are confidential and that orders should be made under O 67B r 5 of the Rules to restrict access to documents 1 to 49 of the Schedule.
5. First, at a high level, I accept that features of the Destec plant which are said to be unique are described in some detail (including by reference to diagrams) in the patent application. This is a document that is publicly available. However, on comparing the patent application to the design drawings, the patent application does not descend to the level of detail contained in the design drawings. There is no suggestion that it would be possible to construct the Destec plant from the diagrams in the patent application. In contrast, the design drawings contain detailed drawings of the 'general arrangement' of the components of the Destec plant and how it is assembled. I accept that these details of the Destec plant are confidential. These details are not in the public domain but remain confidential. On this basis, these documents should be protected by confidentiality orders of the court.
6. Second, a significant issue between the parties in these proceedings is whether the defendants have misused the plaintiffs' confidential information in the design and production of the Destec plant. In support of their claim, the plaintiffs contend that information about the design and production of their Next Gen 1 plant is confidential. In making this submission, the plaintiffs say that design and construction drawings contain confidential information.[6] In my view, either the design and construction documents of the crushing and screening plants are, by their nature, confidential or they are not, subject to whether confidentiality has been waived. Given that the parties are trade rivals, I consider that it is appropriate to maintain the confidentiality of the design drawings at this stage of the proceedings. On the evidence before me, I accept that the design and construction documents of the Destec plant contain confidential and commercially sensitive information, and that this information is not in the public domain.

1. Mr Wyatt says that the photographs over which confidentiality orders are sought were taken at various stages of construction and commissioning of the Destec plant. Because the Destec plant is constructed and commissioned at Destec's factory, the Destec plant and its various components are not visible to anyone (apart from employees of Destec) during this phase. The defendants say that unless confidentiality orders are made over these photographs, it would be possible for the plaintiffs (or other trade rivals) to gain an understanding of the sequencing of, and the approach to, the construction and commissioning of the Destec plant.
2. The plaintiffs deny these photographs are confidential. They say that photographs of the Destec plant are both in the public domain and in material produced by the defendants on discovery, over which confidentiality orders have not been sought or made. In support of this submission, Mr Filing's open affidavit annexed copies of images from Destec's website, as well as images and videos that have been informally produced on discovery by the defendants.[7]
3. While I accept that there are similarities between the photographs and videos annexed to Mr Filing's affidavit and those over which confidentiality is claimed, there is one important distinction between these materials. Based on my review of these photographs, I accept that at least some of these photos (items 51 - 53, 57 - 59 of the Schedule) are of the construction of components of the Destec plant. In contrast, the photographs and videos annexed to Mr Filing's affidavit are limited to the Destec plant in transit; they were not taken in Destec's factory. I also note that these photographs and videos are similar to photographs annexed to the Confidential Affidavits over which confidentiality orders are not sought.
4. On the basis of Mr Wyatt's evidence, I accept that the photographs of the Destec plant in the factory showing its construction and commissioning are confidential. For this reason, I consider it appropriate to make confidentiality orders over the photographs at items 50 to 59 of the Schedule with two exceptions. The photographs at items 52 and 56 are photographs of the Destec plant on the back of a truck. Counsel for the defendant submitted that item 52 showed:[8]

how the primary crusher components are assembled within the framework and elements of that equipment which stand to the side of the module before it's painted and dispatched.

1. This submission was not supported by the evidence of Mr Wyatt, which did not descend to particularity in respect of each of the photographs.
2. I do not accept that photographs 52 and 56 are materially different to the photographs of the Destec plant in transit, over which confidentiality orders are not sought. In my view, these photographs do not show the construction or commissioning of the Destec plant and cannot properly be said to be confidential.

1. The plaintiffs submitted that any confidentiality regime ordered by the court should allow Mr Holstein to have access to the documents. Mr Holstein is a process engineer who specialises in the process of how the characteristics of ore change during the different stages of a crushing, screening and processing plants.[9]
2. In MRL's submission, it is necessary for both Mr Slater and Mr Holstein to have access to these documents because each has different experience in different aspects of crushing, screening and processing plants.
3. While I accept that there is a difference in the expertise and experience of Mr Slater and Mr Holstein, it was not clear why it is necessary for a process engineer to have access to the documents at this stage. This is for two reasons. First, the documents over which confidentiality orders are sought concern the design and construction of the Destec plant. Second, both experts whose reports were adduced in evidence on the application were mechanical engineers. Each conducted a structural comparison of the plants. Given these matters, it is not clear why it is necessary for a process engineer to inspect the documents at this stage to enable instructions to be given to respond to the application for summary judgment.
4. Given that I have accepted that most of the documents are properly characterised as confidential, the parties are trade rivals, and that access to these documents should be restricted, I do not consider that the orders should be extended to enable Mr Holstein to inspect the documents at this stage.

How should access to the Confidential Documents be provided?

1. The defendants' solicitors initially proposed that access to the documents be provided on a read-only basis to the plaintiffs' solicitors for storage on their server. This proposal was rejected by the plaintiffs for two reasons. First, their solicitors do not operate their own eDiscovery platform but rely on a third-party provider. Second, inspection of some of the documents requires a special application. Storage of these documents on an eDiscovery platform or a virtual data room removes some of the functionality, including the ability to annotate or fully review the documents.
2. The plaintiffs instead proposed that MRL establish a restricted data room on MRL's server to review the documents. This data room could be locked down to those individuals who had signed a confidentiality undertaking in the terms proposed by the defendants. Counsel for the defendants rejected this proposal. I agree that this proposal is problematic, including because of the risk of inadvertent disclosure.
3. At the hearing before me, counsel for the defendants proposed that the documents could be provided at the defendants' premises or on a laptop provided by the defendants or a third party (with all relevant applications installed), subject to the laptop being returned at the conclusion of the proceedings to enable the confidential information to be deleted. Senior counsel for the plaintiffs rejected this proposal on the basis that it would enable the defendants to review the work of the plaintiffs in relation to the confidential documents, which would otherwise be subject to a claim for legal professional privilege.
4. As discussed at the hearing, access to the confidential documents (and the necessary applications for their provision) will need to be agreed between the parties. It may involve the provision of a stand‑alone laptop computer by the plaintiffs' solicitors to the defendants to enable the confidential documents to be copied on to it. Any copy of the confidential documents made available to the plaintiffs must enable them to annotate and manipulate the documents. Additionally, access to these documents must be maintained for the duration of these proceedings (and any appeal) with the documents deleted after this. Any concerns the defendants may have about the retention of these documents by the plaintiffs should be able to be addressed by appropriate undertakings from legal practitioners for the plaintiffs, who owe duties to the court.

(a) confidentiality orders should be made over documents 1 - 51, 53 ‑ 55, and 57 - 59 (Confidential Documents); and

(b) at this stage, these orders should not extend to enable Mr Holstein to inspect the Confidential Documents. In so far as the orders enable employees of MRL to inspect the Confidential Documents, these orders should be limited to Mr Williams, Mr Nardizzi and Mr Slater.

1. In relation to how access is to be provided to the Confidential Documents, I do not accept that either of the regimes initially proposed by the parties is appropriate. At the hearing it was agreed that the court need not descend to the detail of what should be ordered, but simply provide some high-level comments to enable the parties to confer and agree to a regime consistent with these reasons. If the parties are unable to agree how access should be provided, they can seek to re-list the matter for orders to be made.

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

[1] Orders of Hill J dated 11 December 2024.

[2] Affidavit of Stephen Leslie Wyatt filed 3 June 2025 [42], 'SLW-62'.

[3] Mineral Resources Ltd v Destec Pty Ltd [No 3] [2023] WASC 104.

[4] Astra Zeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 [10].

[5] Confidential affidavit of Andrew James Filing filed 11 June 2025, 'AJF-2'.

[6] Fourth amended consolidated statement of claim filed 12 May 2025 [14.4], [15.4], [16.4], [22.4A.1], [22.4B.1], [28] - [32], [38].

[7] Fourth affidavit of Andrew James Filing filed 12 June 2025, 'AJF-7' - 'AJF-8', Exhibit-AJF-3.

[9] Fourth affidavit of Andrew James Filing filed 12 June 2025 [6.6.2].