FEDERAL COURT OF AUSTRALIA

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4)

[2013] FCA 1044

THE COURT ORDERS ON THE APPLICATION OF THE APPLICANT OF 30 AUGUST 2013 THAT:

1.    The application for further discovery is refused.

2.    The applicant pay to the respondents their costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    This judgment deals with another interlocutory application by the applicant (Alliance) for discovery from the first and second respondents (Quasar and Heathgate respectively).

2    Previously, on Alliance’s application for particular discovery under the then O 15 r 8 of the former Federal Court Rules 1979 (Cth), on 26 March 2012, I ordered Quasar and Heathgate to make particular further discovery in the following terms:

… any documents which they or either of them have not yet discovered which concern the prospectivity of the Paralana Plains areas, including in relation to tenements adjacent to the Tenement (EL 2874), and which comprise:

5.1    documents which came into existence between 30 August 2002 and 30 August 2004 recording data which the first respondent considered in determining the nature and extent of its exploratory drilling program to search for sedimentary-hosted uranium mineralisation in the Paralana Plains area including but not limited to ground based surveys;

5.2    documents recording the information obtained by the first respondent as a result of the drilling program conducted by it or the second respondent in the Paralana Plains area in the period of about August 2004;

5.3    documents passing between the first respondent and the second respondent in the period between May 2004 and 13 October 2004 in which one respondent conveyed to the other respondent views about the prospectivity of the Tenement.

See Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 (the Discovery Judgment).

3    An application by the applicant to recall and vary that order was made on the basis that it was doubtful or ambiguous as to how it applied, and its terms did not reflect the intention of the Court. That application was unsuccessful: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 2) [2012] FCA 507 (the Second Discovery Judgment), delivered on 17 May 2012. There is no suggestion that that order for discovery was not then complied with. The orders then made also gave Alliance liberty to apply in the event that there was an issue whether particular documents it had specified in its submissions fell within the terms of order made on the Discovery Judgment. That liberty to apply was not exercised, so I assume that no such issue arose.

4    As it is a matter which arises on this application, I note that Alliance, at the time it sought the substantive discovery order be recalled, submitted that order 5.1 of the 26 March 2012 order erroneously specified a period ending on 30 August 2004, and was intended to specify a period ending on 13 October 2004. The significance of those dates will be discussed later in these reasons.

5    In the Second Discovery Judgment, I said at [14]:

It is also convenient at this point to address one matter raised by Alliance. It concerned the date 30 August 2004 in Order 5.1. The “earn-in” period was to be, and was, extended on 5 August 2004 but the formal documentation was not effected until 13 October 2004. The documents encompassed by Order 5.3 reflect the later date. The date 30 August 2004 was inserted deliberately. It was to allow a few weeks after the date by which the option period was to be extended, simply as a precaution, in case there was evolving data anticipated but not by then formally recorded. Counsel for Alliance contended that the date 30 August 2004 was in error because it was not until 13 October 2004 that the extension of the “earn-in” period was formally granted. There is a basis for saying that 13 October 2004 may have been a better date to choose (as was done in Order 5.3), but as the date 30 August 2004 was deliberately chosen, I do not think that the application of the principles discussed above should lead to the substitution of the later date. There is no ambiguity and the date reflects the intention of the Court when the Orders were made.

6    There were then a series of procedural directions hearings. Relevantly, Alliance sought and obtained leave to file and serve an amended statement of claim. That involved some inter partes exchange of the draft proposed amended statement of claim and comments from the respondents on the draft. It was obviously a time consuming process.

7    Ultimately, on 23 May 2013 orders were made by consent:

(1)    giving leave to Alliance to file and serve its amended statement of claim, and its proposed amended application, and its proposed book of particulars, by 24 May 2013;

(2)    setting a time for defences and any replies;

(3)    providing for supplementary discovery as follows:

(a)    by 18 July 2013, Alliance giving notice of any categories of further discovery arising out of the amended pleadings;

(b)    by 25 July 2013, Quasar and Heathgate giving notice of any additional categories of further discovery arising out of the amended pleadings;

(c)    by 2 August 2013, identification of disputed categories, and with liberty to apply by 9 August 2013 (subsequently extended to 21 August 2013 by order made on 15 August 2013) in respect of them;

(d)    other than the disputed categories, further discovery by 29 August 2013 of the agreed further categories; and

(4)    requiring Alliance to notify Quasar and Heathgate by 5 September 2013 of the nature of its proposed expert evidence, to deliver its experts reports by 10 October 2013, and to deliver its lay witness statements also by 10 October 2013;

(5)    requiring Quasar and Alliance to deliver their lay witness statements by 5 December 2013; and

(6)    dealing with costs, and reserving liberty to apply, including for further discovery, for the timing of experts reports from Quasar and Heathgate to be delivered, and for the timing of expert reports in relation to Alliance’s alternate claim for equitable compensation or damages.

8    It is clear that the parties were endeavouring to progress towards fixing a hearing date.

9    There were two applications for supplementary discovery then made. Directions were given on 29 August 2013, and they were heard together on 23 September 2013. The appliction by Heathgate for further discovery from Alliance is dealt with in a separate judgment.

the pleadings

10    The Substituted Statement of Claim (SSC) runs to 72 pages and 183 paragraphs. The particulars are given in the Book of Particulars (BoP) which runs to 101 pages and 137 paragraphs.

11    Quasar’s Defence to the SSC (Q-Def) is 61 pages long and has 191 paragraphs. That of Heathgate (H-Def) is 138 pages long and has 186 paragraphs.

12    Alliance has filed a reply to each defence. Its reply to the Q-Def comprises 27 pages and 82 paragraphs and its reply to the H-Def is 33 pages and 89 paragraphs.

13    One may be forgiven for thinking that the claim is an extremely complex one, and that the pleadings are on a “start again” basis. However, so far as I can discern from such complex pleadings, the fundamental complaint has not altered.

14    Heathgate is the owner and operator of the Beverley uranium mine, and of Mining Lease 6036 issued under the Mining Act 1971 (SA) (Mining Act) and of Exploration Licence 3251 (EL 3251) (previously EL 2633) over an area surrounding that of Mining Lease 6036 and the Beverley uranium mine.

15    Alliance was the lessee of Exploration Licence 2874 (EL 2874) issued under the Mining Act, for the period 17 June 2002 to 18 October 2005. Its area is defined in the SSC as the Tenement. I shall refer to EL 2874 to include its area, as I think the content will show what is meant and that avoids any potential misunderstanding. I understand its term has been extended.

16    EL 3251, on its western boundary, adjoins the area of EL 2874. EL 2874 is on part of what is called the Paralana Plains, and lies between the edge of the Mt Painter Complex and the western boundary of EL 3251, including an area generally known as Four Mile.

17    On 30 August 2002, Alliance entered a Joint Venture Agreement with Heathgate (JV) for Heathgate to explore, and to the extent appropriate to mine, over EL 2874. The JV was recorded later to commence on 30 October 2002 rather than 30 August 2002. Heathgate assigned its rights (and duties) under the JV to Quasar on 17 December 2002. It is alleged Heathgate after the assignment continued to be knowingly involved in the exploration of EL 2874.

18    Under the JV, Heathgate (and later Quasar) had an earn-in right to a 75% interest in EL 2874 by expending $300,000 on exploration of EL 2874 between 30 October 2002 and 30 October 2004.

19    On 13 July 2004, Quasar requested a one year extension of its earn-in right. A draft agreement to grant that extension was prepared and negotiated over the following period. The Extension Agreement was executed by Alliance on 13 October 2004 (the JVEA).

20    The JVEA provided for the commencement date of the JV to be 30 October 2002, and extended the earn-in period to 30 October 2005 with a revised expenditure commitment of $450,000. At 31 August 2004 it was recorded that Heathgate and Quasar had expended $187,948.

21    The expenditure commitment was then satisfied and Quasar obtained a 75% interest in EL 2874.

22    Alliance, putting aside the various ways in which it puts its cause of action allegations (SSC paras 21-31 and 34-44), then alleges that:

(a)    Heathgate before 17 December 2002 had certain information about, and had formed a judgment about, the prospectivity of EL 2874. Particulars are provided.

(b)    Quasar and Heathgate from 17 December 2002 shared that information and judgment, and to about 13 July 2004 gathered further information about, and had formed a further judgment about, the prospectivity of EL 2874, and had further specific plans to assess the prospectivity of EL 2874. Particulars are provided. That date is significant as it was the occasion when Quasar met with Alliance to seek an extension to the earn-in period.

(c)    Quasar and Heathgate between 13 July 2004 and 19 August 2004 gathered further information about, or by that date had formed a further judgment about, the prospectivity of EL 2874, and had further specific plans to assess the prospectivity of EL 2874. Particulars are given.

(d)    Between 21 August 2004 and 30 September 2004 – effectively to about the date of the JVEA – Quasar and Heathgate had gathered further information about, and had taken steps to better assess, and had formed a further judgment about the prospectivity of EL 2874. Particulars are given.

23    Alliance, in essence, says that it was not properly informed of the views of Heathgate at 17 December 2002, and more importantly about the information held by Quasar and Heathgate about the prospectivity of EL 2874 or about the judgment of Quasar and Heathgate about the prospectivity of EL 2874 in the periods set out in (b), (c) and (d) of the preceding paragraph, and that it agreed to the JVEA on 13 October 2004 in circumstances where it should have been made aware of that information and those judgments before it ultimately committed itself to the JVEA.

24    Alliance claims, in various ways, that Quasar and Heathgate are liable for the failure to convey to Alliance those matters.

25    It is noteworthy that the allegations in the SSC in respect of the periods in (a) above run to over six pages and the BoP particulars to over 12 pages; in relation to the period in (b) above the SSC allegations and the BoP particulars run to some six pages and 24 pages respectively; in relation to the period in (c) above, the pages are five and six respectively (it is a little harder to siphon out the particular allegations as they are more interwoven with communications with Alliance); and in relation to the period in (d) above, the pages are six and nine respectively.

26    The point of those observations is that Alliance clearly has very significant material at present to support such detailed allegations, extending over nearly 70 pages.

27    In the above observations, I have not sought to build in the detail of what Quasar and Alliance say in their respective defences to those allegations. I note that in general each defence, to the extent that allegations are made against Quasar or Heathgate, says that Alliance by information provided by either Quasar or Heathgate and by publicly available information, knew of the facts material to the prospectivity of EL 2874 at the times relevant to this proceeding, and each denies failing to provide to Alliance material which each was obliged to provide to Alliance. The defences are also detailed. A page count would not add to the observation that, over many pages, each of Quasar and Heathgate assert the detailed nature of information provided to or available to Alliance from time to time. Each denies any conduct as alleged by Alliance which would give rise to the liability asserted by Alliance and alleges that Alliance should not be entitled to any equitable relief in any event because it chose to delay the bringing of this action between about 2004 and 12 July 2010 (when the application was first made) and the giving of notice of its proposed claim, whilst Quasar undertook extensive exploration over the Four Mile area at a cost of $42m and which would enure unfairly for the benefit of Alliance.

28    The Q-Def asserts that Alliance’s acquiescence, inaction and representation would make it inequitable and unreasonable for Alliance to obtain the relief it seeks, and complains that Alliance has not offered to make any allowances in respect of the expenditure Quasar has incurred. In the alternative it claims that, if Alliance is entitled to any relief, such relief should be conditional on Alliance making some equitable restitution.

29    The H-Def adopts a similar position. It will be necessary to refer to it in a little more detail when considering the Heathgate discovery application against Alliance. It describes its particular defences (other than its denials and assertions of disclosure) as “laches, election, waiver, acquiescence and/or affirmation” by Alliance.

30    The present interlocutory application by Alliance is based upon a list of 27 categories of documents which it provided in accordance with the direction made on 23 May 2013: see [7] above. It is now limited to 19 of those 27 categories.

31    Quasar’s response is that either the categorised documents do not exist, or are not relevant, or that the Court should decline to make the order sought as it is unnecessary having regard to r 20.11 of the Federal Court Rules 2011 (Cth) (the Rules) and would not facilitate the just resolution of the proceedings. Heathgate has taken the same position.

THE PRINCIPLES

32    The relevant principles are not in dispute.

33    The Court should not make an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible: r 20.11 of the Rules, and see Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063 at [7] (Alanco); Coca-Cola Company v Pepsico Inc [2011] FCA 1069 at [33]; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2011) 212 IR 313 at [21]. This principle reflects the overarching purpose of civil practice and procedure of the Court stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The Court controls the discovery process in part to ensure that the parties “are not crippled with the cost and delay of that process”: Alanco at [7]. It will not order discovery as a matter of course, even where the parties consent, unless discovery is necessary for the determination of issues in the proceeding. An applicant for an order for discovery bears the onus of satisfying the Court that the documents sought are necessary: Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426 per Lindgren J at 436.

CONSIDERATION

34    Alliance, pursuant to the orders of 23 May 2013, sought discovery of a further 27 categories of documents from Quasar and Heathgate. Some have been acceded to. To the extent they are presently contentious, they are addressed below by reference to the category number. The 27 categories are an annexure to its application. I will not set them out individually in this judgment.

35    The contention of Alliance, as expressed by its solicitor in his affidavit of 22 September 2013, is that the discovery orders it seeks should not be confined by r 20.14(1)(a) or r 20.14(2). That is, Alliance wants discovery beyond documents which are directly relevant to the issues raised by the pleadings, and it wants discovery extending beyond documents on which Quasar or Heathgate intend to rely, or which adversely affect their respective cases, or which support Alliance’s case, or which adversely affect Alliance’s case.

36    The first argument for such wide ranging orders is that, in respect of the fresh issues (as identified by Alliance), the categories specified are largely technical so a lawyer might not appreciate the direct relevance of a document or documents. The second argument is that during the previous discovery process the parties had disputes about whether some classes of documents were directly relevant, and an order not restricted by those subrules would avoid further dispute. The third argument is the specified categories are all of directly relevant documents, and discovery by categories is likely to be narrower than a general order for discovery.

37    In relation to the earlier pleadings, and the claim by Alliance for discovery of 97 categories of documents, it should be noted that Quasar and Alliance:

(1)    gave general discovery pursuant to an order of 1 October 2010, under O 15 r 2 of the Federal Court Rules 1979 (Cth), and

(2)    gave further particular discovery pursuant to the order of 26 March 2012.

38    The SSC is said by Alliance to justify the discovery of the further categories of documents because it is not clear that Quasar and Heathgate have given discovery of all documents held by them directly relevant to the prospectivity of EL 2874 (in part because the orders made on 26 March 2012 were limited in their terms), and because the SSC raises new issues. In oral submissions, reference was made to paras 45, 47 to 48, and 59 to 61 of the SSC and the particulars given in support of them.

39    Paragraph 45 of the SSC, as its heading shows, relates to the “Information known to Heathgate: pre Deed of Assignment”. That is pre-17 December 2002. I do not accept that the previous orders for discovery excluded from the documents to be discovered those held by either Quasar or Heathgate relating to the prospectivity of EL 2874 and which came into existence prior to 17 December 2002. There was no such temporal limitation. The discovery required by the two orders for discovery, but in particular the orders of 26 March 2012, focused on documents which would tend to show Quasar’s and Heathgate’s knowledge of matters concerning the prospectivity, inter alia, of EL 2874. That would not exclude documents which existed prior to 17 December 2002. Indeed, order 5.1 covered the period from the start of the JV on 30 August 2002. Any material concerning the prospectivity of EL 2874 prior to that date would or should have been known to Alliance, as the holder of EL 2874 from 17 June 2002.

40    Paragraphs 47 to 48 of the SSC relate to the period following the Deed of Assignment of 17 December 2002. For the same reason, I do not accept that those allegations raise any new matters. I note from the headings in the SSC, those paragraphs are intended to cover the period to 30 June 2004, or 13 July 2004 (although para 50 refers to a period to October 2004), which is the time when the possible extension to the earn-in period arose.

41    Paragraphs 59 to 61 are in that section of the SSC referring to the period from 13 July 2004 when the request was made to extend the earn-in period. Again, subject to my comments in the following paragraph of these reasons, I do not consider that those allegations give rise to any fresh assertions.

42    If there is any fresh period raised by the SSC, it may be the period from 30 August 2004 to 13 October 2004. That perception arises from the allegations in paras 91 to 95 and 100 to 101 of the SSC, concerning information said to be gathered by Quasar and Heathgate from late August 2004 to 30 September 2004, partly reflecting actions said to be taken by Quasar and/or Heathgate officers during that period.

43    Those pleadings (at paras 104-108) say the JVEA was signed by Quasar on 23 September 2004, and by Alliance on 13 October 2004. It is common ground that it is dated 29 September 2004. The Q-Def and the H-Def say that it took effect from its date. In any event, Alliance says that there is at least an additional six weeks or so from mid-August to the end of September 2004 when Quasar and Heathgate were accumulating information about, or forming views about, the prospectivity of EL 2874 which is recorded in documents which were not conveyed to it, and should have been conveyed to it.

44    It argues that at least for that additional period, further discovery should be ordered.

45    It also argues in any event that there has been no order for general discovery of documents which might relate to the prospectivity of EL 2874, as the orders made on 26 March 2012 were limited in their extent.

46    I do not accept the last proposition. By the Discovery Judgment of 4 April 2012 (relating to the orders of 26 March 2012), Quasar and Heathgate were intended to have to discover documents which related directly to the prospectivity of EL 2874. I found at [64] that Alliance had pleaded that the information held by Quasar and/or Heathgate in the period leading up to the extension of the earn-in period concerning the prospectivity of other tenements in the areas of the Paralana Plains adjacent to EL 2874 was or should have been relevant to the prospectivity of EL 2874. The orders were made on that basis, and in part prompted by specific matters raised by Alliance. I shall not repeat the terms of orders 5.1 and 5.3. They were directed to the objective data available to assess prospectivity of the adjacent areas (that directly concerning EL 2874 having already been discovered) and the recording of any views of either Quasar or Heathgate touching on the prospectivity of EL 2874.

47    Alliance then applied to have that order recalled and varied. On 17 May 2012, I declined to do so: the Second Discovery Judgment. In that judgment, I commented at [11] that the order was:

… to require particular discovery on the basis that – if that particular discovery were given and was capable of advancing the case of Alliance – the subsequent course of pre-trial preparation would reveal further potentially helpful material. At the point of the exchange of witness statements, it could be expected that the background to the decisions of Quasar and Heathgate about their drilling program in late 2004 would be more fully exposed.

That position still stands. The orders made on 23 May 2013 have set a timetable for the exchange of witness statements.

Both Quasar and Heathgate accepted that order 5.3 of 26 March 2012 included internal documents to one or other of them: see at [17] and [25] of the Second Discovery Judgment. And at [12] I said the order:

… was to identify sufficiently to Alliance whether, in the period leading up to the exercise of the extension of the “earn-in” period, there was information available to Heathgate and Quasar as to the prospectivity of tenements adjacent to the Tenement in the Paralana Plains area which was, or should have been, regarded as relevant to the prospectivity of the Tenement. If there was, the Alliance case is that that information was not, but should have been, disclosed to it.

48    That judgment also at [14] addressed the later date specified in 5.1 of the orders made on 26 March 2012. There was no misunderstanding about the fact that Alliance had not signed the JVEA until 13 October 2004. That is why order 5.3 of those orders extended to that date. The reason why, despite that the 30 August 2004 date was inserted in order 5.1 of the 26 March 2012 orders is there explained.

49    In the light of those matters, I have no reason to think that, other than in respect of the period 31 August 2004 to 29 September 2004 (the practical end date pleaded in the SSC), Quasar and Heathgate have not now given discovery of all documents which they considered during the JV and prior to the JVEA and which either related to the prospectivity of EL 2874, or adjoining tenements, or which record any internal views as to the prospectivity of EL 2874 up to 13 October 2004.

50    Indeed, much of the detailed allegations in the SSC referred to above indicates that the documents discovered by Quasar and Heathgate appear to have enabled Alliance to provide such detail. If that is not so, and Alliance makes those allegations on information it has gathered independently of discovery from Quasar and Heathgate, it may be seen that it has a very detailed knowledge of information about, or potentially about, the prospectivity of EL 2874 at material times.

51    I have considered the affidavit material in support of Alliance’s present claims for discovery. Largely, it is assertive or in the nature of submissions. For the reasons already given, I do not accept that Quasar and Heathgate have not already given discovery of a great deal of material relevant to the allegations in the SSC, so I reject the bald proposition that “the parties are yet to make any discovery” arising from the amended pleadings. Apart from the previous discovery given, Quasar and Heathgate in addition have agreed to give further discovery of certain categories of documents referred to by Alliance.

52    I have also taken into account the evidence of Mr Kearney by his affidavits as to the processes involved in identifying, and giving discovery of, the documents in the previous tranches of discovery by Quasar and Heathgate. It is obvious that to accede to the application of Alliance will involve significant time and expense on the part of Quasar and Heathgate. It is therefore appropriate to look carefully at the material upon which it is said by Alliance that at this point the further categories of documents will be of assistance in the preparation of, or conduct of, the hearing. I have made some observations about the fact that such evidence is largely lacking when considering Category 2 below, and those comments apply generally to each of the still contentious categories of documents.

53    It is necessary now to consider the particular contentious categories.

54    Category 2 is confined to the period 30 August 2004 to 31 October 2004. It in effect adopts the words of order 5.1 of the orders made on 26 March 2012, but extends the period.

55    The evidence to explain why such an order should be made having regard to r 20.11 of the Rules is scanty. As I have noted, one affidavit of 22 September 2013 recognises that Alliance has not confined its request to documents which fall within r 20.14(1)(a) or r 20.14(2). I have not accepted that submission, so it is necessary to look carefully at why it is said there are further undiscovered documents and why, at this point, their discovery would facilitate a just resolution of the proceedings. That material is then to be assessed having regard to the effect on the timetable set by the orders of 23 May 2013, and in addition on the capacity of Alliance to instruct its experts and for them to provide expert reports and to provide its lay witness statements.

56    There is no material from any officer of Alliance that the further discovery sought, in respect of any of the categories, is either necessary or desirable for it to instruct its experts, for its experts to report, or for its lay witnesses to provide their witness statements. I also refer to the comment quoted above at [47] from the Second Discovery Judgment at [11]. Case management in this matter would be likely to require the proposed documentary evidence of the parties to be listed and produced in an accessible and non-repetitive form. The witness statements should anticipate that, so there are not multiple copies of the same documents. At the point of the consideration of the respective witness statements it might emerge that some documents or categories of documents should be further discovered by Quasar and Heathgate, and which have not been discovered. At that point, an informed assessment of the desirability of those documents being discovered could be made. The ruling in this decision takes account of that possibility. Those observations apply also to my consideration of the other categories of documents in issue.

57    As to category 2, the affidavits relied upon do no more than point to the refined nature of the SSC pleading. The change is only from an agreement alleged to have extended the earn-in period on 5 August 2004, subject to formal documentation and approval, to the agreement being effective only by the formal approval (Quasar’s signing of that agreement on 23 September 2004 and Alliance’s signing of that agreement of 13 October 2004).

58    I do not accept that the difference in the SSC from the previous Statement of Claim is significant for present purposes. As the Second Discovery Judgment showed at [14], that position was understood at the time. In that judgment, I declined to extend order 5.1 made on 26 March 2012 to a date in October 2004 because it had been made in the awareness that Alliance had not signed the JVEA until 13 October 2004. In my view, this part of the application is merely an attempt to revisit that ruling, but without any fresh material to support it.

59    Whilst it is necessary to separately consider each category of documents in dispute, these comments about the extended period apply in a general way to each of those categories where the extended period is put forward as of itself being the justification for the discovery of that further category of document.

60    In any event, I do not accept that it is shown that there is further documentary material to discover in this category. Both Quasar and Heathgate have previously indicated that they intended to give discovery to reflect the intention of the orders of 26 March 2012. The SSC, as I have noted, seems to reflect that they have done so. There is nothing to indicate the detailed allegations in the SSC concerning the state of mind of Quasar and Heathgate in the period from 30 August 2004 to 13 October 2004, or the investigations they carried out during that period, or their assessment of their results, as they emerged during that period, came to the knowledge of Alliance other than by discovery. Indeed, so much is accepted in the affidavit of Mr Stents of 30 August 2013, at paras 30 and 31. It seems appropriate therefore to accept the assurance through counsel for Quasar and Heathgate to that effect.

61    I have taken those matters into account, both generally in relation to r 20.11 and in accepting the assurance of Quasar and Heathgate that, in respect of certain categories of documents there are no further documents to discovery. The extent of the processes leading to the initial verified discovery given by affidavit of 21 January 2011 by the President of Heathgate and its efforts, and the time and expenses involved, are set out in the affidavits of Anna Sutherland of 2 and 11 May 2011. The subsequent discovery pursuant to the orders of 26 March 2012 has obviously exposed material relating to the period after 30 August 2004.

62    Category 3 is also confined to the extended period. The relevant allegations in the SSC are based upon documents discovered by Quasar and/or Heathgate. Contrary to the assertions in Mr Stent’s affidavit, Heathgate’s defence to the relevant allegations in the SSC is not merely a denial, but asserts its position in relation to the relevant allegations in the SSC. There is nothing to indicate why the category of documents as described is now necessary for Alliance to prepare its evidentiary material. As I have said, if after the exchange of proposed evidentiary material, and the preparation of the books of documents proposed to be received into evidence, further particular discovery became desirable, Alliance may pursue that request. At present, I am not satisfied that the requested discovery of category 3 documents in the terms sought is either necessary or appropriate to facilitate the just resolution of the claim.

63    Category 4 is also limited in time to the period 1 August 2004 to 31 October 2004. The topic of a gravity low in the Paralana Plains area in the vicinity of EL 2874 is first specifically pleaded in the SSC, but there is no reason to think that Quasar and Heathgate in their compliance with order 5.1 of 26 March 2012 have not discovered the documents they have within its terms, including to the extent they concern a gravity low. Alliance accepts its pleading is based on that discovery. The H-Def responds in detail to those allegations. There is nothing to explain why the further discovery sought is necessary at this point having regard to r 20.11 of the Rules.

64    Category 6 is not confined to documents from the post-July 2004 period. If those documents exist, and they concerned the prospectivity of EL 2874, they should have been discovered pursuant to the previous order. So there is no evidence to show there are undiscovered documents. If there is a dispute about their status, there is no material to explain why their discovery at this point is either appropriate or necessary.

65    Categories 7 and 8 attract the same observations as in relation to Category 3.

66     Category 9 is very broadly expressed. The exchange of views between Quasar and Heathgate is the subject of order 5.3 of 26 March 2012, and has been taken by them as requiring discovery of their internal recording of, and expressions of, views or assessments of material. They have obviously complied with that as Mr Stent’s affidavit acknowledges that allegations in the SSC are based upon discovered material. No reason is shown why, in the circumstances, such a broadly expressed order should now be made.

67    Categories 11 and 12 also relate to an earlier period. They attract in part the comments relating to Category 2. No reason is shown why the discovery of this category of documents is either necessary or desirable at this point.

68    Categories 13 and 14 relate to the August to October 2004 period. I note that Quasar and Heathgate have apparently offered to undertake questioning of their records with apparently useful search criteria. I shall assume that that proposal will be followed through, and that if it exposes some directly relevant documents they will be discovered. Alliance’s concern is that the search categories will only expose the communications in 2004 between its then officers and a geologist, Mr John Higgins, working for Heathgate in 2004 and relating to the 18 August 2004 Handover Report of Mr Higgins referred to in para 80(e) of the H-Def and the 29 September 2004 Handover Report referred to in para 80(f) of the H-Def. There is no reason to be satisfied that documents, other than such communications, are either necessary or appropriate to be discovered at this point. This request appears to epitomise the comments at [35] above about the scope of Alliance’s request, as it suggests that Alliance’s further discovery application has been made by trawling through the discovered material and the pleadings to see what other documents existed or might have existed and which might touch on a pleaded issue. The Reports themselves may well be relevant. There is something to suggest that documents upon which they are based may have some potential significance beyond supporting their contents, but on balance I think that does not go far enough at present. The communications between Quasar and Heathgate concerning the prospectivity of EL 2874 in the critically relevant period (including internal recording of views) already have been ordered to be, and have been, discovered: order 5.3 of 26 March 2012.

69    Categories 15 and 16 attract similar comments as those about Categories 13 and 14. In this instance, the relevant paragraphs of the SSC are paras 80(c), (cc) and (cd) and 100(b) and (c). It is not correct simply to describe the H-Def as a denial of what is pleaded by Alliance (based upon discovered documents). Paragraph 80 of the H-Def extends over seven or so pages asserting what Heathgate says about the reports of Mr Higgins upon which the SSC in these respects is based, and para 100 of the H-Def extends over some six to seven pages and also addresses, inter alia, the reports of Mr Higgins.

70    Categories 17 and 20 also relate to the August to October 2004 period. They attract the same comments.

71    Categories 21 and 22 also relate to the later period. At this point, it is neither necessary nor appropriate to make the orders sought. There is no material to explain why the additional documents requested might be material to the claim, especially having regard to the discovery already given.

72    Category 24, as I understand it, is confined to the period between 24 July 2004 (in the affidavit of Mr Stents it erroneously refers twice to 24 July 2013) and 1 October 2004. For the same reasons, I am not persuaded that it is necessary or appropriate to order the further discovery.

73    Category 27 concerns reports for quarters ending on 30 June 2004, 30 September 2004 and 31 December 2004 concerning the possibility of resumed exploration drilling on nearby tenements. The foundation for the awareness of those reports is the discovery given by Quasar and/or Heathgate. There is no material to persuade me that, merely because such reports may exist, they are discoverable in this proceeding so I am not persuaded that the order sought is either necessary or appropriate at this stage.

CONCLUSION

74    In my view, the further discovery order sought by Alliance should be refused. In summary, I think the request for further discovery is too widely expressed, and I do not accept the reasons for making an application which is not confined to the extent contemplated by r 20.14(1)(a) and r 20.14(2). I do not think that the affidavits of the two solicitors for Alliance indicate why, in terms of r 20.12, the making of the orders sought is either necessary or appropriate to facilitate the just resolution of the claim in a timely and efficient way. And, in large measure, I do not accept that at present the further documents sought to be discovered would serve that purpose having regard to the discovery already given.

75     The application of Alliance of 30 August 2013 is refused. Alliance should pay to Quasar and Heathgate their costs of the application.

Associate:

Dated:    16 October 2013