Supreme Court of WA|2009-02-05|Before: Mr P, Miere J

WESTRAINT RESOURCES PTY LTD -v- BHP IRON ORE PTY LTD [No 4] [2009] WASC 17 (5 February 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WESTRAINT RESOURCES PTY LTD -v- BHP IRON ORE PTY LTD [No 4] [2009] WASC 17

BETWEEN : WESTRAINT RESOURCES PTY LTD (ACN 009 083 783)

Civil practice and procedure - Discovery - Application for discovery of particular documents - Whether documents sought to be discovered are relevant - Whether further discovery would be oppressive on the party ordered to give discovery - Discretion of court - Turns on own facts - Rules of the Supreme Court 1971 (WA) O 26 r 6

1 LE MIERE J: The plaintiff applies for discovery of particular documents.

2 This action commenced in 1996. It concerns alleged breaches by the defendant of an agreement made on 6 June 1988 between Hancock Mining Ltd (HML), Pennant Pty Ltd (PPL) and the defendant (6 June 1988 Agreement) and an agreement made on 17 May 1989 between HML and the defendant (the Ore Wagons Sale and Purchase Agreement). Those agreements in turn relate to an agreement made on 3 November 1986 between HML and Mineralimportexport (MIMEX) (a body established by the Socialist Republic of Romania) (Romanian Ore Sales Contract). The breaches of agreement are alleged to have occurred on and after 16 August 1990.

3 The current statement of claim was filed on 10 December 1998. In December 2000 the plaintiff sought to amend its statement of claim so as to introduce new causes of action. That attempt was finally resolved by the decision of the Full Court in 2002 which effectively refused leave for the plaintiff to amend its statement of claim in the way sought (BHP Iron Ore Pty Ltd v Westraint Resources Pty Ltd [2002] WASCA 18).

4 The present application for discovery of particular documents is made by chamber summons filed 5 March 2003. In 2008 the plaintiff also applied for leave to amend its statement of claim in terms of a minute of proposed re-amended statement of claim dated 10 September 2008. Those proposed amendments were substantially the same as those rejected by the Full Court in 2002. On 21 November 2008 I dismissed the plaintiff's application to amend its statement of claim - Westraint Resources Pty Ltd v BHP Iron Ore Pty Ltd [No 3] [2008] WASC 265. In the meantime I heard the plaintiff's application for further discovery brought by its chamber summons filed on 5 March 2003.

5 On 8 April 2008 the plaintiff filed a 'further minute of proposed amended chamber summons for discovery of particular documents pursuant to O 26 r 6'. By that minute the plaintiff sought that its chambers summons be amended to seek an order that:

the defendant on behalf of each of the entities listed in Annexure A to this summons entitled 'Schedule of BHP Related Entities' (Entities) do make and file an affidavit sworn by its Secretary or other proper officer stating whether the documents or classes of documents described in the Schedule hereto are or have at any time been in the Entities' possession, custody or power and if not then in the Entities' possession, custody or power, when such documents or classes of documents described in the Schedule hereto were last in its possession, custody or power and what has become of them and that the Entity do within the same period serve a copy thereof on the plaintiff.

6 The Schedule listed 12 categories of documents. Annexure A listed 15 companies. It appears from their names that each of the companies is related to the defendant. However, there is no evidence of that.

7 At the hearing of this application senior counsel for the plaintiff in effect further amended the application in two respects. First, the plaintiff does not seek an order that the defendant give discovery on behalf of each of the entities listed in Annexure A. The plaintiff seeks an order that the defendant give discovery of documents in the possession, custody or power of the defendant. Second, the plaintiff does not press for discovery of the documents in categories 1, 6, 7 and 10 and seeks discovery of the documents in categories 2, 8 and 9 only to a limited extent.

8 The defendant has given discovery verified by affidavits sworn by T B Janes on 15 October 1996, 21 November 1996 and 29 July 1997 and by N M Myers on 25 October 2000 and 20 September 2002. The plaintiff's application for discovery of particular documents is brought under O 26 r 6 of the Rules of the Supreme Court 1971 (WA) and the inherent jurisdiction of the court.

9 The principles to be applied in determining whether to make an order for further discovery were summarised by Master Newnes in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60.

In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] VicRp 27; [1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors (unreported; SCt of WA; Library No 6646; 26 March 1987) at [5-14].

In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:

'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words "either directly or indirectly" because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'

The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.

It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery [3] - [6].

10 An affidavit of discovery is conclusive against the party seeking discovery except where the discovery is shown to be insufficient in one of two ways. The first is that the insufficiency appears from the pleadings, the affidavit(s) of discovery, the documents discovered or from any other source that constitutes an admission of the existence of a discoverable document. The second way is that it appears that the party has excluded documents under a misconception of the case by the party making the affidavit(s) and the court is practically certain that he has in his possession, custody or power, other relevant documents which ought to have been disclosed and which he would have disclosed if he had rightly conceived his case: British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 343.

11 In this case the plaintiff must show that the documents it seeks to have discovered are relevant in the sense described above and are, or have been, in the possession, custody or power of the defendant. If those conditions are satisfied the court has the discretion to make an order for discovery of particular documents. The principles of case management adopted by the court have as their goal the elimination of any unnecessary delay in determining proceedings beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues in contention between the parties and the preparation of the case for trial: O 1 r 4A. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim: Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1996) 189 CLR 146, 154 (Dawson, Gaudron and McHugh JJ).

12 In Science Research Council v Nasse [1979] UKHL 9; [1980] AC 1028 Lord Wilberforce said:

... it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The ultimate test ... is where the discovery is necessary for fairly disposing of the proceedings (1065).

13 The Rules of the Supreme Court of Western Australia 1971 (WA) do not expressly state the matters to which the court should have regard in deciding whether to make an order for discovery, including an order for discovery of particular documents, but the court should have regard to the principles of case flow management and the ultimate aim of the attainment of justice. In the exercise of its discretion to grant discovery, or discovery of particular documents, the court should have regard, amongst other things, to the likely relevance and importance, in relation to the issues in the proceeding, of the documents and the likely time, cost and inconvenience of searching for and disclosing the documents. The court should order discovery of the particular documents if, and only if, discovery of the documents is necessary for fairly disposing of the action.

14 A party obliged to make discovery should search diligently to identify all discoverable documents in the party's possession, custody or power. What are reasonable enquiries will depend on the circumstances of each case including the necessity for the discovery. It is not necessary to go to such lengths as would be oppressive: Re McGorm; Ex parte Co-operative Building Society of South Australia (1989) 20 FCR 387; (1989) 86 ALR 275 (Re McGorm); Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282.

15 Before considering each of the classes of documents the plaintiff seeks to have discovered I will outline the issues in this case as revealed by the pleadings.

16 As I have said, the current statement of claim is the plaintiff's amended statement of claim filed on 10 December 1998, which I will refer to as the statement of claim.

17 In [3] of the statement of claim the plaintiff pleads that by the 6 June 1988 Agreement the defendant agreed with HML, amongst other things:

(a) to procure the sale and delivery of 14 million tons of Mt Newman iron ore to MIMEX in satisfaction of the obligations of HML to supply iron ore pursuant to the Romanian Ore Sales Contract; and

(b) to purchase from HML 350 complete sets of ore wagons free into store Port Hedland for a price of $26 million on terms whereby property in such ore wagons was to pass progressively to the defendant as, and when, payments were made, such payments to be by periodic instalments as, and when, ore was delivered by the defendant in satisfaction of HML's obligations under the Romanian Ore Sales Contract, at a fixed dollar rate per ton equal to $26 million divided by 14 million tons, provided that 75 of such wagons were to be delivered and paid for (in the sum of $5,571,000) irrespective of whether or not ore was delivered by the defendant in satisfaction of HML's obligations under the Romanian Ore Sales Contract.18In [6] the plaintiff pleads that, by a document dated 17 May 1989, HML and the defendant more fully and formally recorded the terms of their agreement with respect to the sale and purchase of the ore wagons (Ore Wagons Sale and Purchase Agreement).

19 In its defence the defendant admits that HML and MIMEX entered into an arrangement on 3 November 1986 but says that the arrangement is unenforceable and if MIMEX had any obligation to purchase iron ore from HML, which the defendant denies, that obligation was conditional on a number of things. The defendant admits that it entered into an arrangement with HML and PPL on 6 June 1988 but says that it was an unenforceable arrangement. The defendant pleads that the 6 June 1988 Agreement provided for a number of things including that HML and the defendant shall procure the sale of Mt Newman iron ore to Romania in accordance with the Romanian Ore Sales Contract between 1 June 1988 and 31 March 1992 (the duration of the 6 June 1988 Agreement) or a period during which 14 million tons of Mt Newman iron ore is sold under the Romanian Ore Sales Contract subject to prices satisfactory to the defendant being negotiated by an entity proposed to be established under the 6 June 1988 Agreement and where the negotiated prices are unsatisfactory to the defendant then the defendant shall have no obligation to supply Mt Newman iron ore.

20 The defendant further says that the 6 June 1988 Agreement provides that HML agrees to sell, and the defendant agrees to purchase, 350 sets of ore wagons pursuant to the Ore Wagons Sale and Purchase Agreement subject to certain other provisions.

21 The defendant pleads that the Ore Wagons Sale and Purchase Agreement provided that HML sells, and the defendant guarantees to purchase, 75 ore wagons from HML and that HML sells, and the defendant purchases, the Residual Ore Wagons (defined to mean 275 ore wagons) conditionally upon the sale of Mt Newman iron ore under the Romanian Ore Sales Contract subject to other matters pleaded. The defendant's obligation to purchase the remaining 275 ore wagons is pleaded to be subject to, amongst other things, a condition precedent that Mt Newman iron ore in sufficient quantities be sold to, and paid for by, MIMEX under the Romanian Ore Sales Contract.

22 The defendant denies that the 6 June 1988 Agreement gives rise to any legally enforceable obligations and that it was legally obliged to procure the sale of, and to deliver, 14 million tons of Mt Newman iron ore to MIMEX in satisfaction of obligations of HML or to purchase from HML 350 complete sets of ore wagons.23In [9] the plaintiff pleads that in breach of the 6 June 1988 Agreement on 16 August 1990 the defendant refused, and at all material times thereafter continued to refuse, to supply any Mt Newman ore on behalf of HML to MIMEX in satisfaction of HML's obligations to supply iron ore to MIMEX pursuant to the Romanian Ore Sales Contract.

24 The defendant denies that it breached the 6 June 1988 Agreement. The defendant says that under the 6 June 1988 Agreement the defendant was not obliged to supply Mt Newman iron ore to MIMEX and alternatively if the defendant had any obligation in relation to the sale of Mt Newman iron ore to Romania under the 6 June 1988 Agreement, the defendant was only obliged to use reasonable endeavours to procure the sale of Mt Newman iron ore to Romania in accordance with the Romanian Ore Sales Contract. The defendant says that it used reasonable endeavours to procure the sale of Mt Newman iron ore to Romania and therefore performed, or satisfied, its obligation.25In [10] the plaintiff pleads that by reason of, and in consequence of, its breach of the 6 June 1988 Agreement the defendant also breached the Ore Wagons Sale and Purchase Agreement in that it failed to purchase any of the remaining 275 ore wagons for the sum of $20,429,000 remaining to be paid pursuant to the terms of the 6 June 1988 Agreement and the Ore Wagons Sale and Purchase Agreement.

26 The defendant denies that it breached the Ore Wagons Sale and Purchase Agreement. The defendant says that there was no sale by HML of Mt Newman iron ore in sufficient quantities under the Romanian Ore Sales Contract to create any obligation on the part of the defendant to purchase any of the remaining 275 ore wagons.

27 In [12] the plaintiff pleads that by a deed dated 1 April 1992 and executed by the plaintiff, the defendant and HML, HML assigned to the plaintiff all of its rights, title and interest in the Ore Wagon Sale and Purchase Agreement together with any and all accrued rights or claims to damages or any other interest of HML as against the defendant arising from, or in respect of, any non-performance or breach of:

(b) the 6 June 1988 Agreement in so far as it obliged the defendant to supply Mt Newman ore in satisfaction of the Romanian Ore Sales Contract to the extent that such non-performance or breach affected the defendant's obligations under the Ore Wagons Sale and Purchase Agreement;

with the express consent and acknowledgement of the defendant (Deed of Novation).

28 The defendant says that the assignment was of no effect and the plaintiff cannot enforce the alleged rights purported to be assigned to it under the Deed of Novation.

29 The plaintiff claims damages for the defendant's breach of the 6 June 1988 Agreement and the Ore Wagon Sales and Purchase Agreement. The defendant denies that the plaintiff is entitled to any damages.

30 The plaintiff has filed a reply. In its reply the plaintiff pleads that it was an implied term of the 6 June 1988 Agreement that HML and the defendant would act in good faith, co-operate and do all things necessary to ensure that the terms of the 6 June 1988 Agreement were implemented and performed and that the parties would not do anything which would have the effect of impeding or preventing the performance of the 6 June 1988 Agreement, including the agreement of a price for the supply of Mt Newman iron ore. The plaintiff pleads that in breach of the implied term the defendant caused Eastern Pilbara Iron Ore Company Pty Ltd (EPIOC), the company incorporated to perform the role of the joint management company under the terms of the 6 June 1988 Agreement, not to negotiate a price for the supply of Mt Newman iron ore in 1990.

31 In its written outline of submissions the plaintiff draws attention to the following three issues which it says arise from the pleadings:

(i) The statement of claim at [9] pleads that the defendant refused to supply Mt Newman ore on behalf of HML to Romania. The defence at [9(c)] pleads that the defendant was not obliged to supply the ore (No Obligation Issue).

(ii) The defence at [9(d)] pleads in the alternative that the defendant was only obliged to use reasonable endeavours to procure the sale of ore. The defence at [9(ff)] pleads the defendant did so (Reasonable Endeavours Issue).

(iii) The reply at [13] alleges that it was an implied term of the 6 June 1988 [Agreement] that HML and the defendant would act in good faith, co-operate and do all things necessary to ensure that the terms of the 6 June 1988 [Agreement] were implemented and performed (Good Faith Issue).

Searches conducted by defendant for purposes of discovery

32 Mr Myers is, or was, the company secretary of the defendant. He swore an affidavit on 16 May 2003 in response to the plaintiff's application for particular discovery made in March 2003 and after having reviewed the categories of documents of which the plaintiff then sought further discovery and an affidavit sworn by Christopher Anthony Dale in support of the plaintiff's application. In his affidavit Mr Myers swore that the defendant had given extensive discovery and, before giving that discovery, had made extensive searches for documents. The steps taken by the defendant in order to provide discovery included the following.

33 The defendant first made discovery by a list verified by affidavit sworn by Terry Janes on 15 October 1996. Mr Janes was a general manager and a director of the defendant. The list was subsequently itemised and verified by affidavit on 21 November 1996. The steps taken prior to making discovery were as follows:

(a) In early 1996, Mr Jim Dynon, a senior lawyer then employed in BHPBIO's legal department in Perth, made extensive enquiries of several personnel of BHPBIO or its holding and related companies to obtain relevant documents;

(b) Between April and October 1996, extensive searches were made throughout BHPBIO and its holding and related companies to obtain relevant documents;

(c) In mid 1996, Tim Warman, a lawyer working at Mallesons, attended at BHPBIO's offices to review all documents in the filing room to ensure that all documents relevant to the action had been located;

(d) In mid 1996, Mr Patrick Loftus-Hills, another lawyer then employed in BHPBIO's legal department in Perth, and Mr Dynon asked more than 60 personnel (including former employees) of BHPBIO and its holding and related companies to let them have all documents, including archived documents, which, in any way, related to this action to enable BHPBIO to give proper discovery;

(e) As a result of these processes, BHPBIO produced numerous boxes of documents to Mallesons for review and for discovery; and

(f) The list of documents annexed to the affidavit of Mr Janes sworn on 21 November 1996 was prepared as a result of the collection of documents from the above processes [10].

34 On 3 April 1997 the plaintiff applied for further and better discovery. The defendant's application included discovery of documents relating to:

(1) all parties purchasing iron ore from Mt Whaleback, Mt Newman or any other ore body owned by the Mt Newman joint venture, detailing the allocation of tonnage of ore produced and sold by the defendant or the Mt Newman joint venture during 1989 - 1992;

(2) full iron ore production records (including mining, processing, rail haulage, stockpiling and other records) which detail tonnage, grade and specification of iron ore mined from Mt Whaleback, Mt Newman or any other ore body owned by the Mt Newman joint venture, by the defendant or the Mt Newman joint venture for the years 1989 - 1992;

(3) all sales records and correspondence relating to iron ore mined from Mt Whaleback, Mt Newman or any other ore body owned by the Mt Newman joint venture, by the defendant or the Mt Newman joint venture, and sold by the defendant or the Mt Newman joint venture for 1989 - 1992 which show the specification and grade of iron ore mined and sold by the defendant or the Mt Newman joint venture from Mt Whaleback, Mt Newman or any other ore body owned by the Mt Newman joint venture to third parties;

(4) all minutes of meetings and policy notes relating to the allocation of tonnage of Mt Whaleback, Mt Newman iron ore, or iron ore from any other body owned by the Mt Newman joint venture, by the defendant or the Mt Newman joint venture to their respective customers during the years 1989 - 1992;

35 Mr Myers says that in May 1997 the defendant asked marketing, strategic development, shipping, accounting and control, management, mining, legal and corporate personnel of the defendant and its holding and related companies for documents falling within the categories requested. As a result of those processes the defendant produced several boxes of documents to its solicitors and the list of documents annexed to the affidavit of Mr Janes sworn on 29 July 1997 was prepared as a result of the review of those documents.

36 The defendant provided its second supplementary discovery on 25 October 2000 verified by an affidavit sworn by Mr Myers. This discovery was provided because, as a result of the defendant and its solicitors making enquiries of potential witnesses and other third parties, further documents were found by personnel of the defendant and its holding and related companies and third parties provided documents to the defendant.

37 The defendant provided its third supplementary discovery on 20 September 2002 verified by an affidavit sworn by Mr Myers. Mr Myers says that he was concerned to ensure that all documents relevant to the action had been retrieved and discovered. Also, in December 2000 the plaintiff applied to the court for leave to amend its statement of claim to raise several new factual and legal issues. Mr Myers asked personnel in all of the defendant's departments and its holding and related companies that he believed were, or may have been, responsible for files which contained documents relevant to the action, to review the position and to forward any relevant documents. Mr Myers caused various people to review the board papers and minute books for the defendant and some related companies. The list of documents annexed to Mr Myers' affidavit sworn on 20 September 2002 was prepared as a result of that review of documents.

38 When the plaintiff made its application for discovery in 2003, Mr Myers forwarded a copy of the application to personnel in the departments of the defendant and its holding and related companies in Perth, Melbourne, London, Houston and Singapore who Mr Myers believed were, or may have been, responsible for files which may contain the information requested by the plaintiff and asked them to look for any documents coming within the categories in the application. Some further documents were produced by some of these personnel as a result. A small number of documents indirectly related to two matters raised in the defendant's defence and those documents were provided to the plaintiff. Apart from those documents the further review did not produce any further discoverable documents.

39 In his affidavit, sworn on 16 May 2003, Mr Myers referred to the further documents sought by the plaintiff in its chamber summons of 5 March 2003. Category 7 of the application as it was then framed concerned discovery of documents that were once in the defendant's possession, custody or power but which are no longer. Mr Myers detailed searches and enquiries made by the defendant to locate discoverable documents or identify discoverable documents that once were in the defendant's possession, custody or power which are no longer including searches in Perth, Port Hedland, Newman, Melbourne, London, San Francisco, Houston, Tokyo, Hong Kong and Singapore. Mr Myers referred to the defendant's procedure for archiving documents and for disposing of documents and the defendant's records, including computer records, of such documents. Mr Myers swore:

Also, as explained above, extensive searches for documents have been made and documents relevant to the matters in question in this action found as a result of these searches have been discovered. I do not know of any further searches that can be made to locate such documents. As explained above, I believe that complete and proper discovery has been given by BHPBIO.

As a result of my enquiries, I believe that if any relevant documents existed that were once in BHPBIO's possession, custody or power but which are no longer, those documents would have been:

(i) handwritten notes or jottings that might have been discarded in the normal course of time; and

(ii) other papers that might have been discarded in the ordinary course.

It would be impossible for BHPBIO to prepare a list of such documents. Other than those sorts of documents, as explained above, as a result of my enquiries, I believe relevant documents were separately stored, have not been discarded and have been discovered.

...

In these circumstances, BHPBIO is unable to give further discovery of documents that were once in BHPBIO's possession, custody or power but which are no longer [74], [75], [82].

40 Jennifer Lee Johnson, a solicitor assisting in the conduct of this action for the defendant, on 23 May 2008 swore an affidavit in opposition to the plaintiff's application. Ms Johnson considered the plaintiff's amended application for discovery of particular documents. Ms Johnson caused the following searches to be undertaken to ascertain whether or not the documents described in the 2008 application exist:

(a) A general review of the lists of the defendant's discovered documents (various lists have been provided by the defendant to the plaintiff over the course of this action).

(b) A general review by me and other lawyers within Mallesons acting under my supervision of the processes previously undertaken regarding the defendant's discovery.

(c) A general review of the defendant's documents held by Mallesons which have not been discovered.

(d) I caused the electronic database of the defendant's discovered documents to be upgraded to ensure all of the defendant's discovered documents were entered into the database and are fully text searchable.

(e) I read [Mr] Myers' Affidavit, the attachments to that affidavit and the affidavits referred to in that affidavit.

(f) I provided Ms Lisa Darnell, Senior Archivist, BHP Billiton with a copy of the 2008 Application and related papers, summaries of the documents referred to in the annexures to the 2008 Application and a list of the entities referred to in the 2008 Application and caused her to conduct electronic searches among the archive records of BHP Billiton and related entities using search terms including: 'iron ore', 'sales', 'ore', 'Longbottom', 'Wedlock', 'Camey', 'Hancock', 'Pennant', 'Westraint', 'wagon', 'loco', 'rail', 'car', 'Utah', 'sale', 'purchase', 'production', 'Newman', 'Kneeshaw', '*mania', 'compass', 'Jimblebar', 'operation', 'Romania', 'allocation', 'historical production', 'Newman production', 'operation* report*', 'operating plan', 'carriage' 'Europe ore', 'minerals management meeting', 'mineralimportexport', 'MIE', 'executive general manager and CEO BHP Minerals', 'Mt Newman ore sales', 'business plan 1990', 'business plan 1991', 'Newman business plan', 'source document', 'mineral bus* plan', 'monthly reports', 'marketing', 'minerals finance Europe', 'strategic plan', 'business plan', 'operating plan', 'Mineral Import Export', 'newman operation* report*', '*customer* *ore*', 'allocation* ore', 'historical production ore', '*loco*', 'ore car', 'R*mania', 'capital procedures manual', 'rail spur', 'general managers reports' and 'Hancock Mining'.

(g) I, together with other lawyers acting under my supervision, reviewed approximately 75 boxes of documents provided to me by Ms Darnell.

(h) I caused Ms Stella Chiang, Legal Assistant, BHP Billiton Legal to undertake searches for documents not electronically stored in BHP Billiton's Melbourne archives system.

(i) I had discussions with Mr Trevor Hale, Senior Contracts Officer, Supply Department, BHP Billiton Iron Ore Pty Ltd regarding the acquisitions of ore wagons by the defendant [6].

41 I will now consider each of the classes of documents which the plaintiff seeks to have discovered by the defendant.

Category 2 documents: Communications between and within the defendant and each entity within the BHP group

42 The plaintiff presses only part of its application in so far as it relates to the category 2 documents. The plaintiff seeks discovery of documents passing between the defendant and each entity named in Annexure A to the summons concerning:

(c) the amount of Mt Newman iron ore that was available for sale and the defendant's commitment to its customers during the term of the 6 June 1988 Agreement.

43 In the course of argument senior counsel for the plaintiff further limited the documents sought to be discovered. What the plaintiff seeks is to be ascertained in this way. At (40) of the affidavit sworn 23 May 2008 by Jennifer Johnson, Ms Johnson produced a document entitled 'BHP Iron Ore Historical Production Statistics (Mt Newman, Yandi, Mt Goldsworthy and Yampi Operations) to year ended May 1995' (Production Statistics Document). The second page of that document - (41) of Ms Johnson's affidavit - contains a note: 'These production statistics have been taken from monthly report production records ...'. Senior counsel says that the Production Statistics Document has been compiled from other documents and the plaintiff seeks discovery of those source documents.

44 The defendant makes a number of responses. First, the defendant says that production statistics for the year ended May 1995 are not relevant. The 6 June 1988 Agreement was terminated by a deed of termination on 1 April 1992. Production statistics for the years after 1992 might be relevant to an argument that the defendant manipulated its production by limiting its production during the term of the 6 June 1988 Agreement and then increasing it after the agreement expired. However, production statistics for the year ended May 1995, that is three years after the 6 June 1988 Agreement terminated, are not likely to be important in the resolution of the issues in these proceedings. Furthermore, the plaintiff has the information contained within the Production Statistics Document. There is no evidence that information contained within the documents from which the Production Statistics Document was compiled would significantly assist the plaintiff in the presentation of its case or preparation for trial.

45 Second, counsel for the defendant says, based upon the evidence of Ms Johnson and Mr Myers, that the defendant has made extensive searches and has discovered all documents relating to the relevant production statistics which it can reasonably produce. I am satisfied by the evidence of Ms Johnson and Mr Myers that the defendant has undertaken all reasonable searches for documents relating to production of iron ore at Mt Whaleback or any other iron ore body owned by the Mt Newman Joint Venture for the years 1989 - 1995, including documents that might have been used to compile the Production Statistics Document.

46 Discovery of the source documents is not necessary for fairly disposing of the action.

Category 3 documents: Marketing documents - Mt Newman iron ore

All documents relating to the allocation among the defendants and each entity's customers of available Mt Newman iron ore during the term of the Romanian Ore Sales Contract and thereafter, including all minutes, working papers and reports to or from committees of the defendant or any division of the BHP group or a subsidiary thereof during the set term.

48 In its written submissions the plaintiff stated that under this category it presses discovery of 'all documents relating to the allocation among the defendant's customers of available Mt Newman ore during the term of the 6 June 1988 [Agreement], including all working papers and reports to or from committees of the defendant or any division of the BHP group or a subsidiary thereof during that term'.

49 I am not satisfied that the category 3 documents are relevant to any issue in the action. I accept that the total amounts of Mt Newman iron ore produced, stockpiled and shipped by the defendant during the term of the 6 June 1988 Agreement are relevant. The allocation among particular customers of the defendant of the available Mt Newman iron ore is arguably indirectly relevant in that documents containing that information may lead to a chain of inquiry which may enable the plaintiff either to advance its own case or to damage the case of the defendant. However, the plaintiff has access to documents that disclose the total amounts of Mt Newman iron ore produced, stockpiled and shipped by the defendant during the term of the 6 June 1988 Agreement and the further information sought by the defendant is of secondary importance.

50 Second, the evidence of Mr Myers is to the effect that the defendant has discovered almost all of the documents falling within the description of the category 3 documents. In his affidavit sworn 16 May 2003 Mr Myers swore:

As a result of the extensive searches for documents described above, I believe that BHPBIO has already discovered almost all of the documents coming within category 3. However, as explained above, I am informed by Ms Hensler and believe that there are some:

(a) computer records of railing summaries, stockpile inventory and daily reports of products stacked and shipped for the period 1989 to 31 March 1992, but that BHPBIO has had difficulty extracting data from these computer records;

(b) documents concerning production records for the period 6 June 1988 to 31 March 1992, and

(c) reporting material in relation to the Japanese, Korean, South East Asian, Middle Eastern, West European, East European, Chinese, American and Australian markets for iron ore,

that have not been discovered in this action. In the case of the computer records and documents concerning production records, it would be costly and time consuming to give discovery of them. I am informed by Ms Hensler and believe that, in the case of the computer records, it would also be technically difficult, if not impossible, to give discovery of them [58].

51 Having regard to the evidence of Mr Myers, I am not satisfied that it is necessary for the fair and proper disposition of this action that the defendant be ordered to give further discovery of the category 3 documents. The defendant has conducted extensive searches and discovered such of the category 3 documents as it has located and recovered. To require the defendant to give further discovery of the category 3 documents would place on the defendant a burden disproportionate to the benefit to the plaintiff in obtaining discovery of such further documents as might be recovered or located by the defendant on conducting further searches. It is also relevant that the defendant is seeking this discovery 12 years after the action was commenced and 16 years after the 6 June 1988 Agreement was terminated.

Category 4 documents: Source documents for May 1990 business plan

All source documents for the creation of the defendant's business plan as at May 1990 so far as they relate to:

(a) sales of iron ore to Romania; or

(b) attempts to sell iron ore to Romania

and the purchase of ore wagons during the period of the plan.

53 Mr Myers deals with this category of documents in [59] - [62] of his affidavit sworn 16 May 2003. Mr Myers first observes that the defendant will be submitting that documents falling within this category of documents are not relevant to any matter in question in this action. I will assume for the purposes of the argument that the documents sought are discoverable. Mr Myers goes on to say:

I am informed by Paul Searson, a manager business planning employed by the BHP Billiton group in Perth, and believe that the May 1990 business plan was probably prepared by David Knox and Bruce Nichol. Mr Knox and Mr Nichol are no longer employed by BHP Billiton. Notwithstanding extensive enquiries of Paul Searson and others in Perth and in Melbourne, I have been unable to identify the source documents for the May 1990 business plan [61].

54 At [74] of his affidavit Mr Myers says that extensive searches for documents have been made and documents relevant to the matters in question found as a result of those searches have been discovered. Mr Myers says that he does not know of any further searches that can be made to locate such documents.

55 The effect of this evidence is that the defendant no longer has in its possession, custody or power any source documents as described in category 4. Senior counsel for the plaintiff says that the defendant should give discovery of documents that it had, but no longer has, in its possession, custody or power. That is, the defendant should include in its list of discovered documents a list of the source documents falling within the category 4 description that were in the defendant's possession, custody or power but are no longer so.

56 Mr Myers swears that he has been informed by Mr Searson and believes that:

(a) in the early 1990s business plans were prepared by reference to information (source information) provided by the relevant divisions of the BHP group;

(b) the source information generally contained no analysis;

(c) in or about 1995 or 1996, the business planning personnel were relocated to new offices within Mt Newman House;

(d) while preparing to relocate, documents held by business planning personnel were probably either archived or thrown out;

(e) he has looked for, but has not been able to find, source information for the May 1990 business plan, or other source information, in archives;

(f) it might be that the source information were thrown out while business planning personnel were preparing to relocate in 1995 or 1996; and

(g) Paul Searson did not know of the subject matter of this litigation and the documents that might have been thrown out in 1995 or 1996 were not regarded by him or the personnel involved in the process of office moves to be relevant to any threatened or existent legal proceedings [62].

57 In those circumstances there is nothing to be gained by requiring the defendant to give discovery of the category 4 documents. Any benefit to the plaintiff of the defendant doing so is outweighed by the burden to the defendant of attempting to list source documents from 13 years or more ago where the defendant has no list of such documents. The fair and proper resolution of these proceedings does not require the defendant to give discovery of the category 4 documents.

Category 5 documents: Documents relating to purchase of ore wagons by defendant

(a) all documents relating to the evaluation by the defendant of HML's offers to sell the ore wagons in the period 30 June 1986 to 6 June 1988;

(b) all documents relating to any consideration given by the defendant or any entity in Annexure A to the purchase from HML or the plaintiff of the remaining ore wagons after 30 June 1991;

(c) all documents relating to any consideration given by the defendant or any entity in Annexure A to the purchase and any actual purchase of ore wagons from any third party in the period 3 November 1986 until the exploration of the 6 June 1988 Agreement in March 1992 and thereafter.

59 In its written submissions the plaintiff submits that the review of documents discovered by the defendant has disclosed that the defendant had a change of attitude concerning the purchase of the ore wagons from being willing to purchase them in exchange for iron ore, as per the terms of the Memorandum of Agreement dated 25 May 1987, to an attitude of being willing to purchase no more than 75 ore wagons unless sufficient iron ore could be sold, as per the terms of the 6 June 1988 Agreement. The plaintiff says that the breach of the obligation to procure the sale of ore to Romania may be explained by its consequence. That is, the defendant did not want to supply ore to Romania because if it did so it would be obliged to purchase the ore wagons that it did not want. This is said to go directly to the reasonable endeavours issue and the good faith issue.

60 The defendant says that the documents within category 5 are not relevant to any matter in question. Further, the defendant says that it has already discovered documents answering categories 5(a) and 5(b). The plaintiff has not provided any affidavit evidence in support of category 5(c). There is no evidence to establish that the particular documents exist and relate to a matter in question determined by reference to the pleadings or other admissions, nor is there evidence to explain how documents up to the present time are relevant.

61 I am not satisfied that the category 5 documents are relevant to any issue raised by the pleadings. In any event, the evidence does not satisfy me that the defendant has in its possession, custody or power any documents within category 5 that it has not already discovered. It is not necessary for the fair and proper disposition of these proceedings to require the defendant to give discovery of the category 5 documents.

Category 8 documents: Minutes and related papers of periodic meetings (discovered in part)

the minutes of the meetings, and all papers and reports distributed in connection with such meetings, referred to in Annexure C to this summons entitled 'schedule of minutes and related papers of periodic meetings', and of any other meetings of a similar kind not previously discovered by the defendant.

(a) EPIOC Board meetings;

(b) Operations Committee meetings;

(c) Co-operation Committee meetings and

(d) BHP Iron Ore (Jimblebar) Pty Ltd Board meetings (formerly BHP Iron Ore (Jimblebar) Ltd, BHP Iron Ore (McCamey's) Ltd, Hancock Mining Ltd).

In relation to each of those meetings Annexure C contains a schedule of meetings that have been discovered and not discovered.

64 The plaintiff presses the application in respect of category 8 documents only to a limited extent. The plaintiff's application is explained by Richard Bickerton in an affidavit he swore on 20 March 2008 when he was employed by Hancock Prospecting Pty Ltd (HPPL) in the position of information manager. The plaintiff is a wholly owned subsidiary of HPPL. Mr Bickerton said that the defendant has not discovered a complete set of the minutes and related papers of all of the periodic meetings referred to in the schedule I have already referred to. Mr Bickerton says in his affidavit:

As certain of the documents in Annexure MB-2 have been discovered I believe it is reasonable to infer that the defendant must have formed the view that the minutes and related papers of such meetings which have been discovered relate to one or more of the matters in question on the existing pleadings.

I verily believe that other, undiscovered minutes and related papers for such meetings would relate to the existing pleadings.

The plaintiff therefore respectfully seeks discovery by the defendant of a complete set of minutes and related papers for such meetings which are or were in the possession, custody or power of the defendant and/or its holding and related companies (for at least the period of the operation of the Memorandum of Agreement in May 1987 until the expiration of the term of the 6 June 1988 Agreement in April 1992) [17] - [19].

65 In her affidavit sworn 23 May 2008 Ms Johnson responds to the request for discovery of the category 8 documents. In relation to the EPIOC Board meeting minutes Ms Johnson says that it was the plaintiff, not the defendant, that discovered the signed minutes of meetings of the directors of EPIOC and that is because it is the plaintiff, not the defendant, that holds all the issued shares in EPIOC. Ms Johnson says that the defendant does not hold the minutes sought.

66 As to the Operations Committee meeting minutes and papers that have been sought Ms Johnson says that she has reviewed the relevant minute book. On reviewing the minutes Ms Johnson located minutes dated 23 March 1988 which contained a reference to a matter that may be relevant. The defendant has provided a copy of those minutes to the plaintiff. Ms Johnson says that otherwise the minutes sought by the plaintiff do not contain anything relevant to the matters in issue in this action or do not exist at all.

67 As to the Co-operation Committee meeting minutes Ms Johnson again says that she has reviewed the relevant minute book. As a consequence of that review the defendant has provided the plaintiff with certain minutes. The minute book did not contain the further minutes dated 9 October 1992 sought by the plaintiff.

68 As to the BHP Iron Ore (Jimblebar) Pty Ltd minutes and papers sought by the plaintiff, Ms Johnson says that she has reviewed the minutes of the annual general meetings of BHP Iron Ore (Jimblebar) Pty Ltd dated 24 October 1994 and 23 October 1995 and that those minutes only set out the resolutions passed at those meetings, and attach the relevant financial statements, which are not relevant to the issues in these proceedings.

69 The plaintiff has not established that the defendant has in its possession, custody or power documents falling within the description of the category 8 documents that are relevant to any matter in issue in these proceedings.

Category 9 documents: Documents referenced in discovered documents which have not themselves been discovered

All documents referred to in Annexure D to this summons entitled 'Schedule of referenced but undiscovered documents' and any other documents of a similar kind not previously discovered by the defendant.

71 Annexure D to the summons listed 28 documents. The plaintiff now presses the application in relation to only nine of those documents.

72 The defendant has conducted searches for the documents sought in category 9, but it has not been possible to locate them using BHP Billiton group's electronic database.

73 An order for discovery is discretionary. The court may dispense with discovery where the inconvenience of giving discovery outweighs the benefit, or the proposed discovery exceeds the legitimate requirements of the particular occasion: White & Co v Credit Reform Association and Credit Index Ltd (1905) 1 KB 653; Re McGorm, 278 (von Doussa J); BT (Australasia) Pty Ltd v New South Wales [1997] FCA 1553; Tipperary Developments Pty Ltd v State of Western Australia [1999] WASC 62; (1999) 21 WAR 250 [27] (Parker J); Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60 [7] (Buss JA).

74 In essence, the plaintiff says that the documents listed are discoverable because they are referred to in other documents discovered by the defendant. The defendant denies that the documents are relevant. The plaintiff submits that where an application is made in respect of a document referred to in a document already discovered it is to be presumed, in the absence of evidence rebutting the presumption, that the document referred to is relevant. That issue was considered by Olney J in PDM Australia Pty Ltd v Kellogg Overseas Corporation (Unreported, WASC, Library No 6646, 26 March 1987). Olney J said:

It is not sufficient to show that a particular document of which discovery is sought is referred to in another document of which discovery has been given. It is necessary for the party seeking discovery to demonstrate from admissions on the pleadings or otherwise or from the documents previously discovered that a particular document which might be material to the issues raised in the action is in the hands of the party against whom the order is sought and has not been disclosed (13).

I respectfully agree with the statement of Olney J of the applicable principles.

75 Ms Johnson swears that the defendant has conducted extensive searches for all discoverable documents. She does not believe that any further search would locate the documents requested but that the further search that could be undertaken would take months to complete.

76 In her affidavit sworn 23 May 2008 Ms Johnson swore:

On the basis of further work undertaken and referred to in paragraph 6 above and from information provided to me by Ms Darnell, I believe that the archiving systems used by the defendant is not indexed to the level of specific documents. In order to locate specific documents, it is necessary to undertake an electronic search of keywords to first locate files or boxes of documents which may contain documents with references to these words and to then manually review each of the documents in these files or boxes. Departments within the BHP Billiton group generally provide a description of the files within the boxes sent to archives. These descriptions are then inputted into the database and are used for the keyword searches. If a file contains documents about many subjects, it is possible that the description provided may not cover all of those subjects and therefore these documents may not be highlighted by an electronic keyword search.

Following my request, Ms Darnell caused to be undertaken specific electronic keyword searches in respect of the following items listed in Annexure D - items, 1, 3, 5(2), 6(1), 6(2), 6(4), 7(1), 9, 10, 11(2), 12, 16(2), 17, 18(1) and (2), 22, and 23. In order to undertake these keyword searches, I provided to Ms Darnell the 2008 Application and a list of the documents requested in Annexure D with expanded descriptions based on our review of the relevant discovered documents. Attached hereto and marked 'JLJ6' is a summary of the documents requested by the plaintiff in Annexures C - E (with Mallesons expanded descriptions of the Annexure D documents appearing in the left hand column) and the results of the electronic keyword searches that were undertaken by Ms Darnell, Ms Francis, Senior Technical Advisor, BHP Billiton Archives and Mrs Wharton, Senior Technical Advisor, BHP Billiton Archives. I am informed by Ms Darnell that where there is no information in the two right hand columns, this indicates that this keyword search has not been undertaken because these items are covered by broader search terms. As a consequence of the searches undertaken by Ms Darnell, I believe it will not be possible to use the BHP Billiton group's electronic database to locate the specific documents sought by the plaintiff.

I am informed by Ms Darnell that searches were conducted across two modules of the BHP Billiton Archives database - SSAMS and ARC. SSAMS contains temporary records comprising 188,000 boxes. ARC contains permanent records comprising 159,011 items/files/reports. These records originate from departments and businesses across the BHP Billiton group. Approximately 3,000 boxes registered in the SSAMS module of the database are attributable to the Perth Iron Ore office. Further, approximately 9,000 boxes are stored in commercial storage in Perth and are not registered in either SSAMS or ARC. I, and lawyers under my supervision, have generally reviewed hard copy lists of some of these 9,000 boxes and on the basis of that general review and [Mr] Myers' Affidavit, I do not believe that further documents relevant to the issues in these proceedings are likely to be among the 9,000 boxes stored in Perth. However in order to be certain, it would be necessary to review all 9,000 boxes and this task would likely take months to complete [40] - [42].

77 Mr Bickerton responded to Ms Johnson's statements in his affidavit sworn 5 June 2008:

I refer to my experience as an Information Manager set out in paragraphs 3 to 6 of my affidavit sworn 20 March 2008.

In accordance with the system described in paragraphs 40 to 42 of the Johnson Affidavit, the electronic search of keywords could be used to locate the boxes that may be relevant. In my opinion it is wrong to say that it would be necessary to review all 9,000 boxes. What Ms Darnell and others within BHP should do is review the hard copy lists of the 9,000 boxes so as to exclude those not relevant. Any boxes then remaining should be examined manually to determine whether the box contains relevant documents. I note that Johnson deposes in paragraph 42 that this process did commence.

I also note that Johnson does not depose to the results of the searches 'conducted across two modules of the BHP Billiton Archives database - SSAMS and ARC' [5] - [7].

78 I will refer briefly to some of the category 9 documents discovery of which is sought by the plaintiff.

79 Document 1: This is a note dated 26 February 1987 from B A Nichol, financial analyst planning and development, to A L Neal, railroad manager on the subject of 'railroad capacity'. The note confirms matters discussed in a telephone conversation that day concerning the defendant's fleet of ore cars. Point 6 of the note is: 'any additional railings above 41.8 MTPA must carry the capital cost of additional rolling stock (eg additional OB29 sales must be assumed as having additional capital costs)'. Point 8 says: 'Point 6 must be incorporated into market development economic evaluations'. The final paragraph reads: 'These items will be incorporated into our long term strategic planning parameters and models'.

80 I am not satisfied that the 'market development economic evaluations' or 'long term strategic planning parameters and models' are references to particular existing documents. Market development economic evaluations might be contained in a number of documents that relate to a number of subjects. Similarly, long term strategic planning parameters and models appear to refer to a range of possible documents to be brought into existence in the future in relation to a range of subjects. Furthermore, I am not satisfied that the plaintiff has demonstrated that the 'market development economic evaluations' or 'long term strategic planning parameters and models' referred to in Mr Nichol's note are sufficiently material to the issues raised in this action to justify requiring the defendant to undertake further searches for such documents. It would be oppressive to the defendant to require it to do so.

81 Document 5: This is a note of 16 September 1987 from General Projects and Engineering Manager to M Kneeshaw. The opening sentence says: 'Thank you for your note of the 11 September 1987 in which you describe a few of the concerns you have with the McCamey's arrangements'. The note refers to 'taking a proper commercial approach to any of our relationships with Hancock'. On the face of it the note of 11 September 1987 referred to relates to the reasonable endeavours issue and the good faith issue and is discoverable.

82 The subject matter of the concerns raised by Kneeshaw in his note of 11 September 1987 may be inferred from the note of 16 September 1987. Furthermore, the note of 16 September 1987 has handwritten notes in response which appear to have been written by Mr Kneeshaw. In view of the material that is available the further document sought by the plaintiff is not likely to be significant to the plaintiff in advancing its case or attacking the defendant's case. On the other hand, the likely time, cost and inconvenience to the defendant of conducting further searches for the document would be great. In the exercise of my discretion I decline to order the defendant to give particular discovery in relation to this document.

83 Document 6: A file note of October 1987 by W Walker, Superintendent Rolling Stock Maintenance contains the statements:

I asked if there was any action we should take and Barry requested that I copy my file to him as no one appears to have a complete file on the Romanian deal. Owen has been through Geoff Wedlock's files and extracted some information but he did not get all the information on the ore cars, he was more interested in the McCamey deal when he went through the files [9].

During the conversation in the meeting it appeared that Bruce Nichol had written a critique of the Romanian contract, which appeared to be critical of some of the aspects in the contract [9].

85 The references to Mr Walker's file and to Mr Wedlock's files are a reference to unidentified documents rather than particular documents. The evidence does not establish what documents were on those files and hence whether or not they have been discovered. Ms Johnson's evidence is to the effect that extensive searches have been made and no further documents within these descriptions can be located. The defendant does not claim that Mr Nichol's critique has been discovered. However, the defendant has made all reasonable efforts to locate the document and in the exercise of my discretion I decline to order that the defendant give further discovery.

86 Document 7: The defendant's projects and engineering 1988/89 operating plan makes reference to data files maintained for the production of graphs, tables and script for the report which is produced, bound and distributed on a monthly basis. The defendant has made all reasonable efforts to locate documents falling within these descriptions and has been unable to do so. I decline to order the defendant to give further discovery of these documents.

87 Document 13: This is a memorandum of 23 May 1988 from General Commercial Manager Iron Ore, Asia Pacific Minerals Division to General Manager Finance - Australian Operations BHP-Utah Minerals International. It says: 'Recently your office undertook a critique of the financial analysis which was included in a presentation to the Mt Newman mine participants' [1]. That is not a reference to a particular document. The defendant has undertaken all reasonable searches to locate documents falling within these descriptions and has not been able to locate any further documents. I decline to order the defendant to give further discovery.

88 Document 15: This is referred to in a letter of 8 August 1988 from G M Freeman of BHP-Utah Minerals International to Mr R J Harden, General Manager, Asia Pacific Division and Group Executive. The letter says: 'These expenditures will be covered by the 1988/89 Operating Plan and guidelines from your office'. The defendant has undertaken all reasonable searches to locate documents falling within this description and has not been able to locate any further documents. I decline to order the defendant to give further discovery.

89 Document 19: A note dated 16 September 1988 from R Zimmerman to R K Lamson is entitled 'HML/McCameys Agreement'. It refers to 'your memorandum dated 2nd September, 1988 under the above heading'. The defendant has undertaken all reasonable searches to locate documents falling within this description and has been unable to locate any further documents. I decline to order the defendant to give further discovery.

90 Document 20: The defendant has discovered a document entitled 'Eastern Pilbara Iron Ore Company Pty Ltd Directors Meeting Notes 23 February 1989'. It refers to '1988/89 financial statement open for discussion' and '1989/90 budget based on envisaged sales of 170,000 tonnes only, which at this stage is all we have in the Mt Newman sales forecast'. There is no evidence that the documents referred to are, or have been, in the possession, custody or power of the defendant. There is no evidence that those documents contain any relevant material beyond what is stated in the Director's Meeting Notes in which they are referred to. The defendant has undertaken all reasonable searches for documents falling within this description and has not been able to locate any. I decline to order further discovery.

91 Document 27: A letter of 15 February 1990 from C I Minerals Australia Pty Ltd Director and General Manager to General Commercial Manager, Iron Ore, BHP-UTAH Minerals International, refers to a number of attachments including a '89/90 sales forecast by each destination' and a '90/91 sales plan by each destination'. The defendant has undertaken a search for all documents falling within these descriptions and has been unable to locate any. I decline to order further discovery.

Category 11 documents: Discovery of folders KT to RW

92 This category consists of documents in folders described by two letters which are said to be missing from the defendant's affidavits of discovery. As best I have been able to understand it, the plaintiff's argument is as follows. In the course of the defendant's discovery the defendant has discovered various files or folders which are described by letters and appear to have a sequence of two letters. The defendant has discovered some of them but has not discovered files with letters which, in sequence, fit between letters of files discovered by the defendant. The plaintiff asks that the court infer two things. First, that files or folders exist with the letters which fit in the gaps. Second, they contain documents relevant to some matter in issue. As to the latter matter senior counsel says that it should be inferred that the 'missing' files contain material relevant to a matter in issue because 'what has been discovered either side of those gaps is seen to be relevant'.

93 I am not persuaded by the plaintiff's argument. In any event, the matter is responded to by Ms Johnson in her affidavit in the following way:

Lawyers acting under my supervision reviewed the folders referred to in category 11, other than folders QL, RN, RO, RP and RE which cannot be located.

From the reviews undertaken and on the basis of [Mr] Myers' affidavit, I believe all of these folders have already been reviewed for the purposes of discovery and the relevant documents have been discovered [67] - [68].

94 In relation to the folders referred to in category 11, other than folders QL, RN, RO, RP and RE, I am not satisfied that the plaintiff has displaced the presumption as to the conclusiveness of the defendant's affidavits of discovery. In relation to folders QL, RN, RO, RP and RE the plaintiff has not established to the requisite degree that the folders contain documents that are directly or indirectly relevant to any issue in these proceedings. In any event, the defendant has undertaken all reasonable searches for the folders and they cannot be located. It is not necessary for the fair disposition of this action that the defendant give further discovery of these documents.

Category 12 documents: Negotiations and sales of ore to Romania

(a) Discover all documentation in the defendant's or the entity's possession in respect to discussions, negotiations and agreements to sell iron ore to [MIMEX] or Romania in the period 1986 to 1995;

(b) Discover all documentation in the defendant's or the entity's possession in respect to the sales of ore to Romania in the period 1986 to 1995.

96 A document discovered by the defendant entitled 'Romanian shipments - 1986 to present' shows the volume of sales of ore to Romania. The plaintiff says that it shows a marked increase in sales after the term of the 6 June 1988 Agreement. The plaintiff says that the document is relevant to the reasonable endeavours issue and the good faith issue. The plaintiff says it seeks discovery of documents that were used to collate and produce the discovered document.

97 The defendant says that documents which are outside the time period 1987 - 1992 are not relevant to the issues in these proceedings. In her affidavit Ms Johnson swore:

In any event, on the basis of the work undertaken and referred to in paragraph 6 above and my reading of [Mr] Myers' affidavit, I believe the defendant has discovered all relevant documents answering category 12 in the time period 1987 to 1992 [70].

98 I find that the documents sought are discoverable. However, the evidence led by the plaintiff does not displace the presumption of the conclusiveness of the defendant's affidavits of discovery. Furthermore, Ms Johnson's evidence together with that of Mr Myers is to the effect that the defendant has made all reasonable searches and has located no further documents falling within this description. It would be a significant burden on the defendant to require it to undertake further searches for these documents. If such searches were undertaken it is unlikely that they would result in the location and production of the documents. That is, the cost and inconvenience to the defendant of conducting further searches for the documents is likely to result in no benefit to the plaintiff. Furthermore, if any further documents falling within the description of the category 12 documents were located and produced the benefit to the plaintiff would not be great. I decline to order further discovery.

99 I decline to order the defendant to give discovery of any of the particular documents discovery of which is sought by the plaintiff. The plaintiff's application is dismissed.

WESTRAINT RESOURCES PTY LTD -v- BHP IRON ORE PTY LTD [No 4] [2009] WASC 17 (5 February 2009)

At a glance

Court

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Before

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Judgment (141 paragraphs)

WESTRAINT RESOURCES PTY LTD -v- BHP IRON ORE PTY LTD [No 4] [2009] WASC 17 (5 February 2009)