SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LE MIERE J:
- On 21 December 2018 I delivered my reasons for judgment on application by the defendants and defendants by counterclaim in each of these actions: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 10]. I subsequently ordered in effect that the counterclaim in each proceeding is stayed pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA) or the general power of the court to control its own processes. I dismissed applications by Hancock Prospecting Pty Ltd (HPPL), Hope Downs Iron Ore Pty Ltd (HDIO), the other HPPL parties and Mrs Georgina Rinehart and 150 Investments Pty Ltd (the GHR parties) to stay the whole of the proceedings.
- The HPPL parties and the GHR parties have applied for leave to appeal to the Court of Appeal. Bianca Rinehart (Ms Rinehart) and John Hancock (Mr Hancock) have sought to cross‑appeal. The Court of Appeal has ordered that the applications for leave to appeal be heard with the appeals. The parties have requested that the appeals (the Appeals) be heard in November 2019.
- The plaintiffs in the consolidated proceedings and the Rhodes proceedings submitted that the court should now give directions programming further steps in the proceedings. The HPPL parties and the GHR parties submitted that the court should take no further interlocutory steps until the Appeals have been resolved. On 24 July 2019, I delivered my reasons for determining that the court should give directions for further interlocutory steps to be taken: Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11].
- The parties do not agree what directions the court should now make for the progress of the action. In these reasons I set the directions the court will now give and my reasons for giving those directions.
- On 23 September 2016, I ordered that the defendants were not required to file a defence or amended defence until ordered by the court to do so. Having determined that the court should now give directions to progress the action it is appropriate that the defendants, other than the fifth and sixth defendants (Hope and Ginia), should now file a defence or amended defence by 1 September 2019.
- Hope and Ginia submit that they should not be required to file a defence before the resolution of the Appeals. First, they say that that is the effect or intention of my reasons in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] where at [31] I said that the appropriate course was to make the limited directions proposed by the Rhodes parties. The only order in relation to pleadings, proposed by the Rhodes parties in their amended minute of proposed orders of 28 February 2019, was that any party that intends to file a reply to the defence filed by Ms Rinehart and Mr Hancock do so on or before 29 March 2019.
- At the hearing on 1 March 2019 WPPL proposed that I make directions in relation to pleadings, discovery, evidence and a tender bundle. The Rhodes parties proposed directions in relation only to pleadings and discovery. By referring to the limited directions proposed by the Rhodes parties I was referring to directions in relation to pleadings and discovery, but not necessarily the orders formulated in the Rhodes parties amended minute of proposed orders. I had not at that time determined what directions should be made in relation to pleadings and, in particular, whether or not Hope and Ginia should be required to file and serve a defence.
- Secondly, Hope and Ginia say that they should not be required to file a defence because to do so would destroy the right, which they say they have under the Hope Downs deed, to have any matter in dispute under the deed resolved by confidential arbitration.
- The orders sought by the HPPL parties on appeal are:
- The defendants to the proceedings be referred to arbitration in respect of the defence of [Ms Rinehart and Mr Hancock], pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA).
- The defence of [Ms Rinehart and Mr Hancock] be stayed pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA), or in the Court’s inherent jurisdiction.
- The Court stay the whole of the proceedings pursuant to its general power to control its own proceedings pending the arbitral reference pursuant to Order 1 of the court below made on 21 December 2018, any arbitral reference pursuant to Order 3 above, or the arbitral reference pursuant to Order 5(a) of the orders made by the Full Court of the Federal Court of Australia (Allsop CJ and Besanko and O’Callaghan JJ) on 15 December 2017 in Federal Court of Australia proceedings NSD 916/2016 and NSD 922/2016 (Full Court orders), or until further order of the Court.
- In the alternative to orders 3, 4 and 5 above, the Court restrain [Ms Rinehart and Mr Hancock], pursuant to the inherent power of the Court, s 25(9) of the Supreme Court Act 1935 (WA) or s 17J of the Commercial Arbitration Act 2012 (WA), from making any claim in the proceedings in respect of the ‘Hope Downs tenements’ (as that term is defined in the counterclaim of [Ms Rinehart and Mr Hancock] or asserting any right to or interest in the Hope Downs tenements pending the arbitral reference pursuant to Order 1 of the court below made on 21 December 2018, any arbitral reference pursuant to Order 3 above, or the arbitral reference pursuant to Order 5(a) of the Full Court orders, or until further order of the Court.
- If the appellants are successful in the Appeals and the proceedings are stayed, Hope and Ginia will not be required to file a defence in this court, at least until the resolution of the arbitral proceedings. Hope and Ginia say in effect that the Hope Downs deed gives them a right to have any dispute under the deed, which includes matters alleged by Ms Rinehart and Mr Hancock, resolved by confidential arbitration. Hope and Ginia say that if they are required to file a defence, that right will be destroyed and the harm done will be irremediable if the appellants are successful in the Appeals.
- The defence of Hope and Ginia will respond to the claims of WPPL in the consolidated proceedings and the Rhodes parties in the Rhodes proceedings. Those matters are not within the scope of the arbitral clauses in the relevant deeds. Furthermore, persons other than the parties to these court proceedings are not entitled to access pleadings, other than a statement of claim indorsed on the writ, without the permission of the court. Documents or information produced in these proceedings pursuant to orders will be protected from disclosure to other persons by the common law doctrine summarised by the High Court in Hearn v Street. No irremediable harm will be done to Hope and Ginia by requiring them to file and serve a defence.
- I will direct that Hope and Ginia file and serve a defence or alternatively notice that they will not participate in the proceedings and will abide by any order or judgment of the court. Counsel for Hope and Ginia request that if they are required to file a defence they be allowed 12 weeks to do so. The court must have regard to the overriding purpose of O 1 r 4A and O 1 r 4B of the Rules of the Supreme Court 1971 (WA) (RSC) to eliminate unnecessary delay and facilitate the efficient and expeditious resolution of matters consistent with their just determination. Hope and Ginia were joined as defendants on 23 September 2016. They have been respondents to the Federal Court proceedings since they were commenced in 2014. They have had ample opportunity to consider and prepare their defences. I will direct that they file and serve notice that they will abide any order or judgment of the court by 28 August 2019 or alternatively file and serve any defence by 20 September 2019.
- I will direct that any other party file and serve any amended defence by 20 September 2019.
- I will direct that the plaintiffs file and serve any reply to the defence filed by Ms Rinehart and Mr Hancock on or before 20 September 2019.
- The plaintiffs in each proceeding proposed that each party to the plaintiffs’ proceeding provide to each other party a copy of:
(a) all discovery made by it in the proceedings, to the extent not already provided to that party and subject to compliance with any orders as to confidentiality; and
(b) all expert reports filed by it in the proceedings, to the extent not already provided to that party and subject to compliance with any orders as to confidentiality.
- The parties did not identify the relevant confidentiality orders and whether or not any further order or amendment will be necessary or convenient to facilitate the discovery orders that I will make. If that is necessary then the plaintiffs, or the appropriate party, should confer and if necessary apply for a further order or amendment.
- It is appropriate that the discovery proposed be given. The date for giving discovery should be after the pleadings have closed and the issues have been defined. I will direct that discovery be given in the form proposed by 18 October 2019.
- The plaintiffs in each proceeding further propose that Ms Rinehart and Mr Hancock give discovery in relation to all matters in question in the proceedings. Order 26 of the RSC defines the obligation of discovery by reference to documents that relate to matters in question in the cause or matter. It does not confine the obligation to matters in question between the parties seeking discovery and the party from whom it is sought.
- There is a difference between the parties as to whether and to what extent each party should give discovery in relation to matters in question in the action, but which are not in question between the parties seeking discovery and the party giving discovery. It has not been argued beyond an assertion by the Rhodes parties that such discovery should be given. If any party seeks discovery from a party in relation to matters in question in the action, but which are not in question between the parties seeking discovery and the party from whom discovery is sought, the parties seeking discovery should initiate conferral and, if the matter is not resolved by conferral, bring an application for the further discovery sought. I will direct that by 18 October 2019, Ms Rinehart and Mr Hancock provide discovery, that is, discovery in relation to matters in question between them and the plaintiffs. I will direct that by 18 October 2019, the parties to the plaintiffs’ proceedings in each proceeding (excluding the third party) provide any further discovery, that is, so far as the defendants are concerned, further discovery in relation to matters in question between the plaintiffs and the defendant giving discovery.
- The HPPL parties and GHR parties seek an order that these procedural orders be stayed for 21 days to enable them to consider an appeal against the orders and file an appeal and an application for a stay of the orders pending appeal if they so decide.
- I will make a temporary stay order. In the exercise of my case management powers it is appropriate that I do so. It will enable the HPPL parties and GHR parties to consider their position and bring an appropriate application in an orderly fashion, without requiring the parties and the court to attend to such an application in an unnecessarily urgent manner.
- I will direct that there be a further directions hearing on 22 October 2019. Of course, any party may apply to my associate to relist the matter for directions at an earlier time if events occur which make that appropriate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere
9 AUGUST 2019
