PARKER -v- BHP BILLITON IRON ORE PTY LTD [2015] WASC 95 (19 March 2015)

4 The third application is brought by the defendants (and counterclaimants) to join the Banjima Native Title Aboriginal Corporation RNTBC (BNTAC) as a defendant to the counterclaim. BNTAC's rights are directly affected by the orders sought in the action. The joinder of BNTAC will not have any substantial detrimental effect upon the management and progress of the proceeding. BNTAC should be joined to the proceeding and amendments to the defence and counterclaim made as the defendants propose.

5 In very broad terms, the pleaded facts in Mr Parker's statement of claim include the following, with capitalised and defined terms following the statement of claim.

6 Around December 2000, Mr Parker and two others, on behalf of the Claim Group, entered a Project Development Agreement (the PDA Agreement) with the Manager (the first defendant) as agent for the Joint Venturers (the second, third and fourth defendants).

7 Mr Parker is an Applicant within the meaning of the PDA Agreement and a member of a Native Title Claim Group which claims native title over the land and waters over a Claim Area.

8 The second, third and fourth defendants are Joint Venturers of a mining project in the Pilbara region of Western Australia. The mining project includes land and waters in the Claim Area.

9 The PDA Agreement broadly required the Claim Group to establish and maintain a charitable purpose trust with objects to relieve the disadvantaged position of the Claim Group and other Aboriginal peoples (the MIB Trust).

10 The Claim Group was required to establish and maintain the MIB trust account in a prescribed manner including accounting and audit reports.

11 The Joint Venturers were required to make milestone and production payments to the MIB Trust on behalf of the Claim Group.

12 On 28 April 2009, the Manager suspended payments under cl 7.2 and 7.3 of the PDA Agreement, alleging that a Suspension Event had occurred, involving a failure to provide an audit report by an independent qualified auditor.

13 Mr Parker alleges that (i) audit reports were subsequently obtained, (ii) the former trustee of the MIB Trust (Kingsworld) was replaced with a new trustee (Plan B Trustees), and (iii) a programme of reforms, management and accounting controls were put in place by the new trustee. Mr Parker alleges that these matters remedied the Suspension Event under the PDA Agreement.

14 Mr Parker says that (i) the Manager refuses to pay the suspended compensation payments, (ii) the Manager has refused requests by the new trustee for additional time to implement and complete a staged remediation strategy, and (iii) the Manager has described various circumstances in which it might elect to terminate the PDA Agreement.

15 Mr Parker also pleads that the Manager has breached the PDA Agreement by alleging that suspension of the PDA Agreement can rely upon suspension events that (i) have not been notified to the Applicants, or (ii) have not been adequately notified to the Applicants.

16 One of the important aspects of Mr Parker's claim is that the Manager's refusal to pay the suspended compensation payments is in breach of express and implied terms of the PDA Agreement.

17 Mr Parker claims specific performance of the PDA Agreement 'insofar as it remains unperformed' and an injunction restraining the Manager and Joint Venturers from giving written notice to terminate the PDA Agreement.

18 As I explain later in these reasons, the native title claim by the Martu Idja Banyjima People (MIB People) was combined with another native title application known as the Innawonga and Banjima claim (together, the Combined Banjima Application). More than a year after the counterclaim in these proceedings was brought by the Manager and Joint Venturers the Combined Banjima Application was determined. The Banjima People were found to be the common law holders of native title. Orders were made that BNTAC would hold the native title in trust for them.

19 It is not necessary in these reasons to attempt fully to summarise the defence and counterclaim of the Manager and the Joint Venturers. The relevant parts of the defence are described later in these reasons.

20 Very broadly, the Manager and Joint Venturers deny that they breached the PDA Agreement. In their counterclaim they seek declarations that they are entitled to give notice electing to terminate the PDA Agreement or alternatively a declaration that the Material Suspension Events or Continuing Suspension Events have not been remedied to the reasonable satisfaction of the Manager (for and on behalf of the Joint Venturers) entitling them to continue suspending compensation payments.

21 As to the issue of notice, the Manager and Joint Venturers seek a declaration that

(i) the Applicant and the Claim Group (alternatively, Kingsworld on behalf of the Applicant and the Claim Group); and

conducted their affairs on the conventional basis that notice was not required to be given for the Material Suspension Events or the Continuing Suspension Events.

22 Alternatively, the Manager and Joint Venturers seek a declaration that the parties described in (i) and (ii) had conducted their affairs on the conventional basis that the Material Suspension Events or the Continuing Suspension Events were to be remedied to the reasonable satisfaction of the Joint Venturers by 28 April 2012.

23 It is also necessary to make some brief comments about the pleading of the defence and counterclaim in circumstances in which amendments will be made.

24 The defence and counterclaim is voluminous. It runs to eighty pages. The defence and counterclaim follows a very traditional, and common, pleading technique of responding to each paragraph of the statement of claim in turn. Paragraphs (eg par 13) are sometimes broken into sub-paragraphs, subsubparagraphs, sub-sub-sub-paragraphs, subsub-sub-sub-paragraphs, and sub-sub-sub-sub-sub-paragraphs (eg par 13(b)(G)(i)(D)(aa)). Unfortunately, the descending levels of paragraph are sometimes very difficult to follow. Matters are complicated by the changing sequence of alpha-numeric numbering. For instance, there is a par 13(b)(D)(i)(A) and also a par 13(b)(i)(A)(A).

25 In taking this approach to the pleading, involving descending levels of paragraphs, the Manager and Joint Venturers have followed a widely accepted method of pleading. But in large litigation such as this, conventional pleading techniques sometimes need to be rethought. It can assist a reader if the pleading is divided into sections. Headings and subheadings can be very useful, although a heading in the middle of a sub-paragraph can cause confusion. Contents pages can be invaluable. And section (or even sub-section) summaries can ease the reader into the pleading.

The first application: Mr Callaghan's application to set aside the subpoena

26 The Manager has issued a subpoena to Mr Callaghan seeking the following:

1. all Documents recording, evidencing or relating to payments which you received from the MIB Trust, Kingsworld or Karijini between the period 1 July 2007 and 30 June 2010; and
2. your tax returns and any bank statements for the financial years ended 30 June 2008 to 30 June 2010.

Documents means any bank statements, receipts, internal notes, memoranda, letters, reports, applications and records, and includes information embodied or contained in hard copy form, electronic form or some other form so as to be capable, with or without the aid of some other device, of being reproduced therefrom;

Karijini means Karijini Development Pty Ltd ACN 115 030 236;

Kingsworld means Kingsworld Pty Ltd ACN 109 479 272, the trustee of the MIB Trust from 17 February 2005 to 27 April 2011; and

MIB Trust means the Martu Idja Banyjima Charitable Trust constituted by a deed of settlement dated 17 February 2005.

27 Mr Callaghan does not object to item 1 of the subpoena.

28 Mr Callaghan says that the matters in item 2 are 'at large and not limited to matters concerning the use of MIB Trust, Kingsworld and Karijini funds'. He says that it is not possible to ascertain what legitimate line of enquiry is served by this request and it risks compromising the commercial privacy of an individual.

29 There are essentially two concerns raised by Mr Callaghan.

30 The first is whether the subpoena has a legitimate forensic purpose and whether its terms are proportionate to that purpose (and not oppressive).

31 The second concern is whether orders should be made to restrict the inspection of documents produced on the subpoena. Mr Callaghan seeks orders restricting inspection of documents produced on the subpoena to (i) the solicitors and counsel for the parties, and (ii) to those parts of the bank statements evidencing payments from the MIB Trust, Kingsworld, or Karijini funds.

Setting aside a subpoena or restricting inspection: legal principles

32 In Boase v Axis International Management Pty Ltd [No 3],[1] Beech J summarised many of the principles and authorities concerning applications to set aside a subpoena or to restrict inspection. His Honour said the following:

Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination ...

In advance of trial, the determination of whether a document is relevant is a difficult one ...

In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account. The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial ...

Ultimately the relevance of the documents produced will be a question for determination at the trial. It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the party seeking to issue the subpoenas and the recipient of the subpoenas ...

Documents can be inspected whether or not they are in an admissible form ...

One object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage in proceedings. Accordingly, a narrow view should not be taken as to the legitimate purposes of a subpoena of apparent relevance ...

The determination of whether inspection should be permitted of documents produced on subpoena is separate from the question of whether to grant leave to issue the subpoena ...

Further, the question of inspection is distinct from the question of whether a document may be tendered at trial ... The tests are very different. Many documents might meet the apparent relevance threshold for inspection, but fall well short of being sufficiently relevant to be admissible at trial.

If a document is apparently relevant, inspection will usually be permitted, even though it is not admissible as it stands and the party seeking the document has not undertaken to tender it or use it in cross-examination ...

Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information ... However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection ...

The principles of case flow management and the objects in O 1 r 4(b) of the Rules of the Supreme Court 1971 (WA) must be kept in mind in the exercise of discretion whether to permit inspection ...

(authorities omitted)

Whether the subpoena to Mr Callaghan (item 2) should be set aside

33 In pars 23 and 26 of the Statement of Claim the following is pleaded:

(1) the matters referred to at [10] [22];

(2) the acknowledgements of the disadvantage position of the Claim Group in the PDA Agreement (clauses 3.1(a), 81(a)) and the MIB Trust deed recital A clauses 1.1 (definitions of "Aboriginal Community", "Charitable Objects". "Community Benefit"), 5, 6);

(3) the interests of the Claim Group under the PDA Agreement to access the land for cultural purposes and to be compensated for the Joint Venturers' use of the land during the life of the Project, in return for the Claim Group relinquishing the enforcement of their native title and their entitlement to compensation for the effects of the Project on their native title;

it would be unconscientious for the Joint Venturers to make an election under clause 9.3 of the PDA Agreement on or after 28 April 2012, at least not without first allowing Plan B an opportunity to complete the staged remediation strategy.

1. The Plaintiff, the Applicants and the Claim Group are and have always been ready and willing to perform the PDA Agreement and remain willing to perform the Agreement.

34 In par 17 of the Statement of Claim, Mr Parker pleads that the Manager breached the PDA Agreement by alleging that suspension of the PDA Agreement can rely upon Suspension Events that (i) have not been notified to the Applicants, or (ii) have not been adequately notified to the Applicants.

35 The Manager and Joint Venturers respond to this plea in part, at par 13(b) of their defence, by pleading the Material Suspension Events upon which they rely. The Manager and the Joint Venturers also rely independently upon the Material Suspension Events in their counterclaim as I have explained above.

36 One of the Material Suspension Events relied upon by the Manager and Joint Venturers is 'Payments in breach of trust to Karijini'. No objection is currently taken by Mr Parker to what appears to be an omission by the Manager and Joint Venturers to explain, in each case, how each alleged Material Suspension Event falls within that particular clause of the PDA Agreement.

37 In relation to the alleged Material Suspension Event concerning payments in breach of trust to Karijini, the Manager and the Joint Venturers say as follows.

Payments in breach of trust to Karijini

13(b)(x)

In the financial year ended 30 June 2008, payments and trust funds applied to Karijini Development Pty Ltd (Karijini) totalling at least $981,230 were recorded in the Trust's accounts in breach of clause 5.1 of the Trust Deed [which requires that the Trust Fund be applied exclusively for the promotion of charitable objects], which breach was acknowledged by Plan B [the trustee of the MIB Trust] in the First Allens Report.

At all material times, the plaintiff, Mr Slim Parker and Mr Richard Callaghan were directors of Karijini and received trust funds through Karijini, or could have received trust funds through Karijini.

38 It appears, although it is not entirely clear, that the allegation that Mr Callaghan could have received trust funds through Karijini is linked to the pleading in the previous sub-sub-paragraph (par 13(b)(xvi)) that Mr Callaghan owed a duty as a director of Kingsworld not to place himself in a position where his duties to Kingsworld could conflict with his own interests or his duties to others. The Manager and Joint Venturers do not plead the person to whom Mr Callaghan owed these duties. The assumption seems to be that the duties are owed to Kingsworld as a corporation (perhaps rather than as a trustee).[2]

39 Mr Callaghan submits that there can be no legitimate purpose for the request (at item 2) for tax returns and any bank statements for the financial years ended 30 June 2008 to 30 June 2010.

40 Mr Callaghan says that there is no legitimate purpose to the subpoena because it is not limited to matters concerning the use of MIB Trust, Kingsworld, and Karijini funds. He says that there is no legitimate purpose to this request because there is no contention in the proceedings that he 'in fact used' MIB Trust, Kingsworld, or Karijini funds. But the issue (on the state of the pleadings) seems to be not whether he used the funds. It is whether he received them. The alleged breach is said to arise from the receipt of funds, not the use of them.

41 Mr Callaghan did not submit that the subpoena should be set aside because it seeks bank records and tax returns for the relevant years concerning all receipts and not merely receipts of MIB Trust, Kingsworld, or Karijini funds. Consequently, no evidence or submissions were made response to such a potential submission by the Manager and Joint Venturers.

42 It may be that one reason why this submission was not made is because there may be difficulty identifying, with precision, those items in a bank statement which correspond with particular receipts from one of these entities. Another reason may be the breadth of the pleading that the trust funds were received through Karijini which might admit of the possibility of an intermediary transferor. A third reason may have been the difficulty in setting aside a subpoena on this basis. As the Full Court said in Stanley v Layne Christensen Co,[3] 'cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings'.

43 In any event, Mr Callaghan's concern about the potential breadth of the documents he is required to produce was raised as a matter concerning the scope of inspection that should be permitted.

Should the inspection of documents produced on subpoena be confined?

44 As I have explained, Mr Callaghan suggests orders restricting inspection to (i) the solicitors and counsel for the parties, and (ii) to those parts of the bank statements evidencing payments from the MIB Trust, Kingsworld, and Karijini funds.

45 In his submissions, Mr Callaghan relied on the decision in Australian Gas Light Company v Australian Competition and Consumer Commission.[4] In that decision, French J refused leave to issue a subpoena, explaining that[5]

Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave.

46 On the evidence before the Court, there is no real parallel between the commercial privacy concerns in that case and those of Mr Callaghan. That case involved subpoenas that sought to 'mine the corporate offices of the two electricity retailers and the generator for the thoughts of senior executives, managers or directors about possible acquisitions in the relevant market'.[6]

47 However, individual privacy might sometimes be a relevant consideration to any restrictions that might be placed upon inspection of documents produced on subpoena. The imposition upon an individual's privacy by subpoena can be harder to justify in circumstances where the material produced appears to be irrelevant to the proceedings.

48 It may well be the case that some orders should be made in these proceedings restricting inspection of, or permitting redaction of, the documents produced. But this is a matter that should be addressed after production.

49 One reason why this matter should be addressed, if necessary, after production of the documents by Mr Callaghan to the Court is because the Manager says (without demur from Mr Callaghan) that there has been no conferral on this issue. Proper conferral should occur before the issue is litigated.

50 Another reason why this issue should await production of the documents is because O 36B r 9(5) of the Rules of the Supreme Court (WA) provides that if the addressee of a subpoena objects to inspection 'the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection' (emphasis added).

51 The application to set aside the subpoena should be dismissed but Mr Callaghan should have liberty to apply for orders restricting the inspection of documents he produces to the Court in answer to the subpoena.

The second application: Mr Parker's request for further and better particulars

52 The second application is a request by Mr Parker for further and better particulars of two paragraphs of the Third Further Amended Defence and Counterclaim.

53 The paragraphs which are the subject of this application plead a defence of 'unclean hands' to the claim for specific performance (par 20) and a defence that Mr Parker was not ready, willing and able to perform the PDA Agreement (par 23(b)).

54 Those paragraphs are as follows (with emphasis added in bold italics of the further and better particulars requested by Mr Parker).

1. In further answer to paragraph 23 of the statement of claim, if, which is denied, the Manager does not have a right to elect to terminate the Agreement as at 28 April 2012, the plaintiff should not be awarded orders in the nature of specific performance on the basis of the doctrine of unclean hands in that:

(a) the plaintiff and Mr Slim Parker were, at all material times, members of the board, as well as shareholders, of Kingsworld and exercised control over the Trustee; and

(b) during the time in which the plaintiff and Mr Slim Parker exercised control over the Trustee, each of the plaintiff and Mr Slim Parker received benefits during the financial years ended 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011, in breach of the Agreement, Trust Deed and the plaintiff's duties as director of Kingsworld acting as Trustee.

1. Further particulars to be provided prior to trial.

1. As to par 26 of the statement of claim, the Manager:

(b) says that the plaintiff, by reasons of the matter pleaded in paragraph 20 above, was not ready, willing and able to perform the Agreement, in that;

(i) the plaintiff was at all material times a member of the board of Kingsworld and exercised control over the Trustee; and

(ii) during the time in which he exercised control over the Trustee, the plaintiff received sums of money during the financial years ended 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011, in breach of the Agreement, Trust Deed and the plaintiff's duties as director of Kingsworld acting as Trustee;

The fundamental problem with the pleaded paragraphs

55 The pleaded paragraphs are almost as broad as can be imagined. It is impossible for Mr Parker adequately to plead any reply to them. They involve unspecified breaches of duty, by the receipt of unspecified sums of money or unspecified benefits, for unspecified purposes, on a broad range of dates.

56 Most fundamentally, the paragraphs do not explain what contractual, trust, or directors' duties have been breached. It is trite that different alleged breaches might involve different states of mind, different conduct, different defences. This is the essence of the Mr Parker's complaint. Mr Parker's application might have been brought as an application to strike out this paragraph. But at the very least the further particulars he seeks are required.

57 The Manager and Joint Venturers make a number of points about the nature of Mr Parker's request for further and better particulars.

58 The Manager and Joint Venturers say that Mr Parker's request was not in the proper form. They say that the request is out of time. They say that some of Mr Parker's submissions conflate issues concerning the request with the application to set aside the subpoena. They say that it would be oppressive and unfair to require them to provide details of every individual payment.

59 All of these points are legitimately made. But, even taking them into account, the fundamental deficiency of the defendants' plea of these paragraphs must be addressed. It is not satisfactory for the detail sought by Mr Parker to be 'appropriately addressed at trial' as the Manager and Joint Venturers suggest. If breaches of contractual, trust, or directors' duties are alleged then Mr Parker should not have to wait until trial to know the nature of these allegations.

60 Although Mr Parker seeks further and better particulars of these paragraphs, it would be more appropriate for them to be re-pleaded. The parties should confer on the appropriate timetable for re-pleading. At first impression, two weeks should be sufficient, concurrently with the amendments associated with the joinder of BNTAC to which I now turn.

The third application: joinder of BNTAC as a defendant to the counterclaim

61 The third application is by the Manager and Joint Venturers to join BNTAC as a defendant to the counterclaim.

62 The rule for joinder in O 18 r 6 of the Rules of the Supreme Court 1971 is as follows:

(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party, but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.

63 In Pegang Mining Co Ltd v Choong Sam,[7] Lord Diplock considered an English predecessor to this rule. His Lordship said that '[a] better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?'

64 This direct interest test has been approved many times.[8] The test is not rigid: '[t]he test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected.'[9]

65 Apart from the question of 'direct interest', there are also considerations of case management required by O 18 r 6(2).[10] It has been held that the meaning of the words 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined' encompasses 'modern notions of case management and the desire of the justice system to minimise time and costs in litigation'.[11]

66 Two examples can be given in which the direct interest test was applied to find that third parties to a contractual dispute had a direct interest and were appropriately joined.

67 The first case is Pegang Mining Co Ltd itself. That case concerned a tripartite agreement between a lessee of a mining lease, a sublessee, and a subsublessee. Each of the three parties was a party to the litigation. However, one person, described as the Contractor, was not party to the litigation or the tripartite agreement.

68 The Contractor had entered into a separate agreement with the subsublessee by which the sub-sublessee promised the Contractor that she would grant the Contractor liberty to enter on the lands, and to win and work the materials.

69 The question for the Privy Council was whether the Contractor should have been joined to the appeal. The Privy Council held that the Contractor was directly affected by an order made in the action. Although the Contractor was not a party to the tripartite agreement, the Contractor's interest was sufficiently direct because the success or failure of the appeal would affect whether the Contractor could exercise separate rights under his licence from the subsublessee to enter the land and to win the minerals for the sub-sublessee in exchange for a share of the proceeds of sale.

70 The second case is News Ltd v Australian Rugby Football League Ltd.[12] That case involved proceedings to set aside Commitment Agreements and Loyalty Deeds between the Australian and NSW Rugby Leagues and associated clubs. A cross-claim brought by Australian and NSW Rugby Leagues and loyal clubs alleged breach of contractual and fiduciary duties by rebel clubs who had joined the Super League.

71 The Full Federal Court held that players and coaches allied with the Super League should have been joined. Although the players and coaches were not parties to the contracts, the orders sought would directly affect their rights to choose the employer for whom they would work.

72 In 1998 the MIB People made an application in the Federal Court for determination of a native title claim.[13]

73 On 3 June 2011, Barker J combined their application with another native title application known as the Innawonga and Banjima claim (the Combined Banjima Application).[14]

74 On 11 March 2014, Barker J determined the Combined Banjima Application.[15] The Banjima People were found to be the common law holders of native title. Orders were subsequently made that BNTAC would hold the native title in trust for them under s 56(2)(b) of the Native Title Act 1993 (Cth).[16]

75 The defendants say that the BNTAC should be joined as a defendant to the counterclaim because it is arguable that BNTAC might be able to enforce rights under s 11(2) of the Property Law Act. Although the defendants say that this point is arguable, they reserve the right to oppose such a claim.

76 Section 11(2) of the Property Law Act 1969 (WA) provides as follows:

(2) Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but

(a) all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available;

(b) each person named as a party to the contract shall be joined as a party to the action or proceeding; and

(c) such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.

77 The reason why the Manager and Joint Venturers submit that a s 11(2) claim is arguable is for the following reasons:

(i) clause 1.1 of the PDA Agreement defines 'Applicant' as including the 'Body Corporate' in relation to any determination of native title in respect of the claim, which is now BNTAC;

(ii) clause 7 of the PDA Agreement required the Manager and Joint Venturers to make payments to the MIB Trust 'to compensate the Claim Group and the Applicants' for matters including the effect on their native title rights and disturbance to or interference with the area covered by their native title claim; and

(iii) clause 8.2(b)(i)(A) permitted the Applicants to request that all or any part of such payment of compensation be paid to a person, or for a purpose, other than the MIB Trust.

78 Mr Parker does not dispute that it is arguable that the BNTAC has rights under s 11(2) of the Property Law Act. Instead, Mr Parker submits that BNTAC should not be joined to the counterclaim because he considers that the Manager should first agree to the assignment of the PDA Agreement and then BNTAC should be substituted as a defendant.

79 There is currently no application, or any submission, that BNTAC should be compelled to take an assignment as Mr Parker says is required by the PDA Agreement. That issue can be put to one side.

80 Two other submissions are made by Mr Parker. First, Mr Parker also submits that the mere arguability that BNTAC would have any rights under s 11(2) of the Property Law Act, and the fact that this conclusion is ultimately denied by the Manager and Joint Venturers, is insufficient. Secondly, Mr Parker says that the Manager and Joint Venturers will not be prevented from obtaining the relief that they seek, or relying upon the outcome of the action in a subsequent claim by BNTAC, by the failure to joint BNTAC as a party.

81 Strictly, the Manager and Joint Venturers have not yet denied that BNTAC has rights under s 11(2). But, in any event, neither of the two submissions relied upon by Mr Parker is a sufficient basis to resist joinder. The primary consideration for whether a non-party to the PDA Agreement should be joined, as the non-party was in Pegang Mining Co Ltd and News Ltd, is one of natural justice. It is not whether another party will be adversely affected. Indeed, orders can be made joining a party to proceedings even where that person is indifferent to the outcome.[17]

82 In Pegang Mining Co Ltd,[18] Lord Diplock said of the rule concerning joinder of an additional party:

[O]ne of the principal objects of the rule is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given the opportunity to be heard.

83 As McHugh J said in The State of Victoria v Sutton[19]

[t]he rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order.

84 There is an arguable possibility that the interests of BNTAC will be directly affected by the making of the orders sought in the counterclaim by the Manager and Joint Venturers.

85 As to case management considerations, it is common ground that the amendments will not cause any disruption, or any significant disruption, to the case management of this case. This conclusion is based upon the proposed amendments provided by the Manager and the Joint Venturers with their submissions. As the Manager and Joint Venturers explain (and Mr Parker accepts):

(i) the nature of the counterclaim against BNTAC is the same as the nature of the counterclaim against the existing defendants by counterclaim;

(ii) while the current pleadings do not reflect the fact that the Banjima Claim has been determined, only minor amendments to the defence are required to rectify this situation;

(iii) BNTAC was registered on 31 October 2013, 18 months after the proceedings had commenced and well after the relevant events in dispute occurred. Accordingly, it is unlikely that BNTAC will have any documents to discover (or that BNTAC will need to provide discovery);

(iv) any defence to the counterclaim is likely to be short or will substantially replicate the defence raised by the present defendants by counterclaim; and

(v) Mr Parker and two of the counterclaim defendants are directors and members of BNTAC[20] and BNTAC is likely to be represented by the same solicitors as Mr Parker and the defendants by counterclaim.[21] With this combined knowledge, it would not be difficult for BNTAC to participate in the proceedings.[22]

86 The combined effect of these matters provides much solace that case management concerns arising from joinder are minimal. It is not necessary to go further and make any order prohibiting discovery from BNTAC or requiring the Manager and Joint Venturers to undertake not to seek discovery from BNTAC.

87 The orders sought by the Manager and Joint Venturers should be made, but, as Mr Parker submits, the orders should be subject to them filing a Fourth Further Amended Defence and Counterclaim (which, consistently with a need to simplify and clarify the defence and counterclaim, might be restyled 'Defence and Counterclaim (version five)') with amendments concerning the joinder of BNTAC which do not differ substantially from those about which submissions were made in this application.

88 The usual course would have been for such a proposed amended pleading to have been filed with the application. This application was brought, and submissions made, on the basis of the proposed amendments by the Manager and Joint Venturers which were described as 'potential changes'. If they wish to depart from those proposed amendments in a substantial manner then they should explain why joinder should be permitted on that substantially different basis.

89 The orders should be to the following effect as sought by the Manager and Joint Venturers:

(i) BNTAC be joined to this proceeding as the second defendant by counterclaim, with the present defendants by counterclaim being renamed as the first defendants by counterclaim;

(ii) subject to the Manager and Joint Venturers filing a Fourth Further Amended Defence and Counterclaim within 14 days of the date of this order with amendments concerning the joinder of BNTAC which do not differ substantially from those about which submissions were made in this application, the Manager and Joint Venturers serve the writ of summons, current pleadings in these proceedings, and a sealed copy of this order on the second defendant by counterclaim within 28 days of the date of this order;

(iii) Mr Parker and the defendants by counterclaim have leave to file an amended reply to the Fourth Further Amended Defence and Counterclaim on a date to be fixed; and

(vi) costs of the joinder application be in the cause.

90 By 4.00 pm on 23 March 2015, the parties should email to my associate a minute of agreed orders to give effect to these reasons, consequential orders and a timetable for addressing the matters raised in these reasons. If matters cannot be agreed, the parties can make any brief submissions at a directions hearing. The orders should be to the following general effect:

(i) the application to set aside the subpoena is dismissed;

(ii) Mr Callaghan has liberty to apply to a registrar of this Court, after proper conferral, for orders restricting the inspection of the documents produced upon the subpoena;

(iii) within 14 days (which currently appears to me to be a reasonable time frame), the defendants amend pars 20 and 23(b) of their defence and counterclaim and make any amendments to the format and structure of their Third Further Amended Defence and Counterclaim; and

(iv) orders should be made to give effect to the joinder of BNTAC, as set out above at [89].

91 Once these orders are settled, the parties should contact the associate to the CMC List Manager, Beech J, to arrange for the transfer of this matter to a new case manager and a date for a directions hearing.

[1] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [11] - [21].

[2] See my discussion in Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 285 FLR 121, 173 [207].

[3] Stanley v Layne Christensen Co [2004] WASCA 50 [9] (Miller & EM Heenan JJ) (citations omitted).

[4] Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956 [8].

[5] Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956 [8] (French J).

[6] Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101; (2003) ATPR 41-956 [11] (French J).

[7] Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, 55.

[8] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1, 46 [131] (French CJ, Gummow, Hayne, Heydon & Kiefel JJ); The State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291, 316 - 318 [76] - [81] (McHugh J); Tiao v Lai [No 2] [2010] WASCA 189 [109] (Buss JA; Owen & Murphy JJA agreeing).

[9] News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 525 (the Court); Morrell v Mercantile Mutual Insurance (Australia) Ltd [1999] WASCA 250; (1999) 21 WAR 451, 456 - 457 [15] (Malcolm CJ).

[10] Martin Bruce Jones (As Receiver And Manager Of Miami Waterfront Developments Pty Ltd) v Miami Waterfront Developments Pty Ltd [2012] WASC 483 [31] - [31].

[11] Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 221, 226 - 227 [24] (Owen J).

[12] News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410.

[13] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [6].

[14] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [6].

[15] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [7], EJS-2.

[16] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [7].

[17] QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186; (2013) Australian and New Zealand Insurances Cases 61 - 949 [172] (Murphy JA).

[18] Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, 54.

[19] The State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291, 316 [77].

[20] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [8].

[21] Affidavit of Mr Sylwestrzak sworn 5 March 2015 [9].

[22] Defendants and plaintiffs by counterclaim's submissions (5 March 2015) [11(d)].