McKerracher J
This matter concerns an application by the Buurabalayji Thalanyji Aboriginal Corporation (BTAC) alleging sham commercial agreements that void the State's approval of an associated mining proposal. The respondents are Onslow Salt Pty Ltd (Onslow Salt) and the State of Western Australia (State).
Cross-claims have been brought by Onslow Salt (1st), Chevron Australia Pty Ltd (2nd), the State (3rd) and BTAC (4th).
Background
The background to this proceeding is set out in a number of previous judgements. See Related Content below.
In Buurabalayji (No. 4) McKerracher J ordered that the 2nd, 3rd and 4th cross-claims should be determined before any further programming orders or the hearing of the principal proceeding and first cross claim.
The parties were required to file a minute of consent orders programming the hearing of the cross-claims. The parties disagreed on three key points:
The scope of discovery (standard or non-standard);
The timing of discovery (before or after the filing of lay evidence); and
Whether it was possible to estimate the length of the hearing and hence attempt to list a hearing date now and make associated programming orders.
Discovery
The 2nd, 3rd and 4th cross-claims' orders did not provide for discovery by them. BTAC considered this inequitable and illogical.
McKerracher J considered the Court's rules and standard practice note for discovery. His Honour found that there was a clear need for discovery and BTAC is entitled to discovery of relevant documents in order to allow it procedural fairness in meeting and defeating the cross-claims.
The Court directed that the parties inform each other whether they sought standard or non-standard discovery and attempt to agree, serve requests for discovery and listed the matter for case management to address any matters not agreed.
Timing of discovery and evidence
BTAC sought orders for evidence to be filed prior to discovery. Conferral about discovery would be done later. McKerracher J did not agree and considered orders for evidence after discovery would give the parties the best opportunity to present their evidence completely.
Trial Dates for Hearing Cross-Claims
BTCA did not agree with the cross-claimants' timetable and argued that it was premature to list the matter for trial and to make the programming orders sought by the cross-claimants.
McKerracher J acknowledged BTAC's submissions but was conscious of the time that had elapsed since proceedings first commenced on 20 July 2017. His Honour saw a benefit in fixing trial dates to focus the parties minds on these milestones and noted the difficulties of listing interlocutory applications given the number of parties involved and the limited availability of their counsel.
The parties were ordered to provide the Court with a list of their available dates for a 1 week trial between 6 April and 31 July 2020.