WOODSIDE ENERGY LTD & Ors -v- MORRISSEY & Ors [2026] WASC 293

[2026] WASC 293 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : WOODSIDE ENERGY LTD & Ors -v- MORRISSEY & Ors [2026] WASC 293 CORAM : HOWARD J HEARD : 16 JULY 2026 DELIVERED : 23 JULY 2026 FILE NO/S : CIV 2460 of 2023 BETWEEN : WOODSIDE ENERGY LTD First Plaintiff WOODSIDE BURRUP PTY LTD Second Plaintiff WOODSIDE ENERGY GLOBAL PTY LTD Third Plaintiff AND KRISTEN ALICE MORRISSEY First Defendant JOANA VERONIKA PARTYKA Second Defendant EMIL JAMES LEHMANN DAVEY Third Defendant -- 1 of 23 -- [2026] WASC 293 Page 2 Catchwords: Practice and procedure - Application for pre-action discovery pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) - Application brought to identify a potential party or parties - Where defendants pleaded guilty to criminal charges arising out of the Incident - Where plaintiffs submit that it appears that additional people were likely involved in the Incident - Where WAPOL conducted in-depth investigation into the Incident - Where plaintiffs know the names of two further people involved in the Incident - No appearance that any further persons who may have been involved in the Incident - Application dismissed Legislation: Rules of the Supreme Court 1971 (WA) Result: Application dismissed Category: B Representation: Counsel: First Plaintiff : S Penglis SC Second Plaintiff : S Penglis SC Third Plaintiff : S Penglis SC First Defendant : D Chandler Second Defendant : T Blackburn SC and A L Mason Third Defendant : T Blackburn SC and A L Mason Solicitors: First Plaintiff : Allens Second Plaintiff : Allens Third Plaintiff : Allens First Defendant : McNally & Co Second Defendant : Climate Defenders Australia Ltd Third Defendant : Climate Defenders Australia Ltd -- 2 of 23 -- [2026] WASC 293 Page 3 Cases referred to in decision(s): Downer Utilities Australia Pty Ltd v Alinta Energy Transmission (Chichester) Pty Ltd [2022] WASC 354 Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484 Reynolds v Higgins [2024] WASC 260 Waller v Waller [2009] WASCA 61 -- 3 of 23 -- [2026] WASC 293 HOWARD J Page 4 HOWARD J: 1 By an Originating Summons filed on 21 December 2023, the plaintiffs seek the following orders pursuant to O 26A r 3 of the Rules of the Supreme Court 1971 (WA) (Rules): 1.1 within 14 days of the date of these orders, each of the defendants each give discovery, by affidavit, of all documents (as that term is defined in Order 26 rule 1A of the Rules) (Documents) that are or have been in their respective possession, custody or power relating to the description of any person involved in the planning, preparation and/or execution of the Incident… (Potential Parties); 1.2 each defendant personally attend the Court, on a date to be fixed, to be examined in relation to the description of the Potential Parties. (emphasis in the original) 2 The application arises out of what the plaintiffs have defined as the Incident which occurred on the morning of 1 June 2023 at an office of the plaintiffs on Mount Street, Perth (Office). 3 The Incident was a protest against the activities of Woodside Energy Group Ltd's (Woodside) operation and development of the North West Shelf Project and the Pluto LNG Project (Projects) in the north of this State. The plaintiffs are subsidiaries of Woodside. 4 The defendants appear to be members of a group known as 'Disrupt Burrup Hub'. It further appears that individuals associated with the Disrupt Burrup Hub group have carried out various protests against the activities associated with the Projects. 5 Notwithstanding that other protests against the Projects have been organised and carried out by members of the Disrupt Burrup Hub group, it is important to bear in mind that the application brought by the plaintiffs is limited to causes of action they say they may have arising out of the Incident and not from other protests more generally. 6 Each of the defendants was charged with offences on indictment arising out of the Incident. That indictment was not in evidence before the Court. However, it appears that the first defendant (Ms Morrissey) was charged with two offences: 1. doing an act, namely releasing ethyl mercaptan, with the intention of creating a false belief or suspicion of such a nature that would reasonably call for action by the police force or my -- 4 of 23 -- [2026] WASC 293 HOWARD J Page 5 emergency services, namely a belief or suspicion that human safety was or may have been endangered; and 2. unlawfully, and with the intent to annoy any person, causing a poison or other noxious thing, namely ethyl mercaptan to be administered to others. 7 The second and third defendants (Ms Partyka and Mr Davey respectively) were charged with aiding Ms Morrissey in the first offence. Neither Ms Partyka nor Mr Davey were charged in relation to the second offence. 8 Each of the defendants pleaded guilty to the respective charges in the District Court of Western Australia on 20 June 2025 and was sentenced on 2 July 2025. 9 The Prosecutor read the State's statement of material facts on 20 June 2025, which included the following: [T]he offenders, Kristen Morrissey, Emil Davey, and Joanna Partyka, are all involved in the Disrupt Burrup Hub protest group, which is opposed to planned expansion industrial projects by Woodside. As part of their protest activities, the three offenders participated in a plan to release stench gas at the Woodside building at Tower 1 Capital Square, 11 Mount Street, Perth on 1 June 2023. The Woodside building is a 29-storey building occupied by the employees of Woodside Energy. On 1 June 2023, there were in excess of a thousand employees and contractors present in the building, including the victims in this matter. The foyer area is accessible to the public, and has an air-handling unit that helps circulate air throughout the building. Stench gas is a tradename for a gas comprising 15 per cent ethyl mercaptan, and 85 per cent carbon dioxide. It is ordinarily used as a warning device in underground mining operations due to the strong, easily detectable odour of ethyl mercaptan, which is similar to a gas leak, and capable of alerting people when visual or auditory warnings may not be practicable. Ethyl mercaptan can be smelt when present in concentrations of about .00076 parts per million. Whilst not harmful when used as intended in mine ventilation systems, it is toxic if inhaled in high concentrations for extended periods, with symptoms including nausea, fatigue, and irritation to mucous membranes. … -- 5 of 23 -- [2026] WASC 293 HOWARD J Page 6 The canister of stench gas used at the Woodside building is one of two acquired by another Disrupt Burrup Hub member in April 2023 for use in protest activities against Woodside.1 The other canister was seized by police following an unsuccessful attempt to release it at the Perth Convention Exhibition Centre on 28 April 2023. … On 30 May 2023, the offenders, Partyka, Morrissey and Davey, attended a public discussion with other Disrupt Burrup Hub members at Lawson Flats, 4 Sherwood Court, Perth. Early in the morning on 1 June 2023, Morrissey went to Partyka's residence at [an address], Perth. … At about 9.40 am on 1 June 2023, Morrissey, Partyka and other [sic] Disrupt Burrup Hub member, Sengala,2 left Partyka's residence in a vehicle belonging to Partyka. Morrissey was dressed in office attire, including a black jacket and blue scarf covering a white Disrupt Burrup Hub shirt, and carrying a large bag containing the stench gas canister, and two smoke-emitting devices. At 10.02 am, the offender Morrissey arrived on foot at the Woodside building, walking along Mount Street from the direction of St Georges Terrace. The offender Morrissey opened the gas valve on the stench gas canister and entered the building. She walked around the foyer area for around 14 minutes before going to the corner of the building away from the main doors and continuing to release gas from that location. … At about 10.20 am, various workers in the building began to leave of their own volition, and at about 10.25 am, … an evacuation [was announced] over the PA system. When she heard the evacuation announcement, the offender Morrissey left the building foyer and stood immediately outside the building. As workers left the building, she yelled words to the effect of, "How does it feel to be gassed out of your building?" or, "How does it feel to have gas shoved in your face?" She released the two smoke- emitting devices. Davey and Sengala were present outside the building at this point, and both photographed or filmed her setting off smoke devices and being arrested, with photographs from Sengala or Davey subsequently uploaded to the Disrupt Burrup Hub Facebook site with a press release. 1 It is common ground, as will be apparent, this is a reference to Tahlia Storlaski: see RL-52 at page 62 of the affidavit of Mr Lilly, made and filed on 22 April 2026. 2 It is common ground, as will be apparent, this is a reference to Emma Sangalli. In the quotation, I have left Ms Sangalli's name as it was in the original transcript. -- 6 of 23 -- [2026] WASC 293 HOWARD J Page 7 … On 2 June 2023, Morrissey received bail in relation to this matter. Following her court appearance, she was met by Partyka, and walked back to Partyka's residence to retrieve her belongings. Whilst walking, they had a discussion about the offence and the media coverage it had received, which Morrissey inadvertently recorded on her phone. Partyka said during that discussion: This one has been one of the more high-profile ones that we've done, and everything went to plan. The entire building was evacuated. … Later that day, police conducted a search of Morrissey's vehicle, and seized and examined the contents of her phone, with her consent, and located the recording of that conversation. The gas canister was sent for forensic analysis, and two pieces of tape that were sent for analysis contained DNA profiles matched to Davey. On 12 June 2023, police executed a search warrant at Partyka's residence and arrested her in relation to this matter. She declined to participate in an electronic record of interview. On 4 August 2023, Davey was arrested in relation to this matter and also declined to participate in an electronic record of interview. Twenty-two of the people who were in the Woodside building on 1 June 2023 experienced headaches, nausea, or other ill-effects consistent with exposure to stench gas following their evacuation. Most of these effects were minor and resolved without medical treatment or time off work; however, seven of those people either sought medical attention, or experienced ill-effects that persisted for several days. … All three offenders shared an intention to release the stench gas canister in the Woodside building and cause the occupants to wrongly believe that there was a gas leak, and cause the evacuation of the building. Their purpose in doing this was to disrupt the activities of Woodside, and draw public attention to their protest groups. Morrissey is liable as a principal offender in relation to both counts. Whilst she intended that people would smell the gas, and that it would be unpleasant for them, and continued to release gas until it was present in the building in quantities that would make it noxious, she did not intend or expect that anyone would suffer harm as a result of her release of the gas. And, indeed, it was not obviously probable that that would occur given the circumstances in which the gas was released. -- 7 of 23 -- [2026] WASC 293 HOWARD J Page 8 Her actions were not motivated by hostility or malice towards any of the employees of Woodside. Partyka is liable as an aider in relation to count 1. Immediately prior to the commission of the offence, Morrissey filmed a message prepared for the offence, and left some belongings at Partyka's home. Along with Morrissey and – along with Morrissey, Partyka travelled in her car some way towards the place where the offence was to be committed. Her involvement in the Disrupt Burrup Hub group, and comment to Morrissey following the plan indicate that at all relevant times she was aware of and in agreement to the plan, and assisted Morrissey by letting her prepare for the offence at her house, leave her belongings there in anticipation of arrest, and travel in her car. It is not alleged that she intended, or should have foreseen that Morrissey would release a sufficient volume of the gas for it to be noxious. Davey is liable as an aider in relation to count 1. He purchased the items used to construct the device, and smoke candles knowing that they were intended for an offence such as the one committed, and was either involved in the construction of the canister and devices, or provided the tape for that purpose. His involvement in the Disrupt Burrup Hub group, and his presence outside the building to photograph indicate an awareness of what was contemplated. By making himself available to photograph Morrissey to publicise and promote actions, he further aided in the commission of the offence. It's not alleged that he intended, or should have foreseen that Morrissey would release a sufficient volume of the gas for it to be noxious.3 10 Cormann DCJ accepted the material facts as read by the Prosecutor. 11 The first charge (to which each of the defendants pleaded guilty) carried a maximum penalty of 2 years' imprisonment. The second offence, applicable only to Ms Morrissey, carried a maximum penalty of 5 years' imprisonment. 12 The Prosecutor in the sentencing hearing described the seriousness of the Incident, and the respective roles of the three defendants (in addition to what was contained in the statement of material facts read to the Court and quoted above), as follows: … premeditated and involved significant planning and coordination on the part of all three offenders. It is apparent from the facts that this was not something that was dreamed up overnight. It was something that 3 CPB-8 to the affidavit of Charles Philip Blaxill, made and filed on 19 January 2026 (Blaxill affidavit) at pages 57 - 64. -- 8 of 23 -- [2026] WASC 293 HOWARD J Page 9 was done in a calculated fashion following the acquisition of items for that purpose some months – at least eight months before and then coordinated action on the day in which the offender Morrissey took the main role.4 … … the different roles the offenders Partyka and Davey played in relation to that first offence[.] Obviously, the State accepts they played a considerably lesser role in terms of what they did compared to Ms Morrissey. They fall to be sentenced as aiders, but also aiders who performed a small number of discrete acts to assist. And the way that's been described is in the amended statement of material facts, but essentially, Ms Partyka is making her house available, holding onto Ms Morrissey's clothes and permitting the use of her car prior to the offence. In relation to Mr Davey, it is assisting with the construction of the device that was used to release the stench gas and being present to film and publicise the offending when it occurred. The observation the State would make, though, and it's relevant in assessing their seriousness, is in terms of their moral culpability, their level of knowledge of what was contemplated, and their wholehearted agreement at least in relation to count 1 with what was intended, and ongoing participation in a plan from a period sometime before until the time of the offence is relevant. So it's not a case where your Honour has - situationally, your Honour could identify one offender as the directing authority, for example, of the other offenders, but rather, where there's a shared goal which is - which they had participated in to different degrees. So no difficulty with the characterisation of Ms Morrissey's offending in relation count 1 as considerably more serious, tempered by those remarks the State has just made. Just moving on to the objective seriousness of count 2. Here, the offender Ms Morrissey falls to be sentenced for, effectively, going further than what was intended. And this is again described in the State's amended statement of material facts - the decision to continue to release gas past the point where it is smelled until it was present in buildings in quantities that would make it noxious. Again, it is important - and the State is not trying to suggest otherwise - to - for your Honour to bear in mind the limits of Ms Morrissey's culpability. The State's not suggesting, again, that she set out to harm people by doing that. The State is not suggesting that it was objectively probable that persons would suffer harm. She is culpable because she did those actions in circumstances where it was reasonably foreseeable 4 CPB-8 to the Blaxill affidavit at page 89. -- 9 of 23 -- [2026] WASC 293 HOWARD J Page 10 as a possible outcome that it would reach a level of concentration that was noxious and be administered to persons.5 13 On 2 July 2025, Cormann DCJ sentenced: 1. Ms Morrissey to a total effective sentence of 11 months' imprisonment suspended for 18 months for the two offences;6 2. Ms Partyka to 7 months' imprisonment suspended for 12 months;7 and 3. Mr Davey to a community-based order for 6 months with a supervision and community service requirement.8 14 The seriousness of the sentences imposed may be observed by reference to the cascade of sentencing options provided by s 39 of the Sentencing Act 1995 (WA), and by reference to s 39(3) of that Act. 15 The resolution of those charges explains to some degree the delay in this application coming on for hearing. 16 As mentioned in [6] above, each of the defendants was charged on indictment. From the charges, the statement of material facts and the Prosecutor's submissions, it may be observed that: 1. the State took the Incident very seriously which culminated in charges being laid on indictment; 2. the Western Australia Police Force (WAPOL) had conducted a significant investigation of the Incident and the involvement of persons in its conduct and planning; 3. at least one other Disrupt Burrup Hub member was named in the State's statement of material facts; 4. the District Court attached very significant consequences to the Incident by way of its sentences imposed on the defendants; and 17 The plaintiffs, on the material before the Court, do not appear to have taken any further civil action against the defendants since the conclusion of the criminal proceedings on 2 July 2025. 5 CPB-8 to the Blaxill affidavit at pages 92 - 93. 6 CPB-8 to the Blaxill affidavit at page 125. 7 CPB-8 to the Blaxill affidavit at page 126. 8 CPB-8 to the Blaxill affidavit at page 126. -- 10 of 23 -- [2026] WASC 293 HOWARD J Page 11 18 Further evidence as to the investigation conducted by WAPOL may be found in evidence led by the plaintiffs that WAPOL had searched five residential properties and seized the electronic devices of at least seven people.9 19 It may be noted that despite what appears to have been, from the above quoted passages, an intensive police response to the Incident, only the defendants were charged in relation to the Incident. And, further, there was no suggestion made by the State in the criminal proceedings that the defendants had acted in concert with others, save for possibly Ms Sangalli as the fourth person named by the Prosecutor as I have quoted above and Ms Storlaski as the purchaser of the canister. I am, of course, making no findings as to their involvement. Evidence relied on in the application 20 The plaintiffs rely on affidavits of: 1. one of their solicitors, Richard Gordon Lilly, made on 21 December 2023 and filed on 22 December 2023, of 462 pages (first Lilly affidavit); 2. one of their senior corporate officers, Emma Doyle, made on 21 December 2023 and filed on 22 December 2023, of 30 pages (Doyle affidavit); 3. Mr Lilly made and filed on 25 June 2024, of 5 pages (second Lilly affidavit); 4. another of their solicitors, Charles Philip Blaxill, made and filed on 19 January 2026, of 202 pages (Blaxill affidavit); and 5. Mr Lilly made and filed on 22 April 2026, of 73 pages (third Lilly affidavit) 6. Mr Lilly made and filed on 2 July 2026, of 19 pages (fourth Lilly affidavit). Submissions received 21 The plaintiffs filed and served submissions: 1. on 2 July 2024; 9 Plaintiffs' substituted outline of submissions filed on 19 January 2026 [26(h)] (plaintiffs' submissions) and the evidence referenced therein. -- 11 of 23 -- [2026] WASC 293 HOWARD J Page 12 2. (by way of substitution) on 19 January 2026; and 3. (by way of reply) on 22 April 2026. 22 Ms Morrissey filed and served submissions: 1. on 16 July 2024; and 2. (by way of substitution) on 18 March 2026. 23 The second and third defendants filed and served submissions: 1. on 16 July 2024; and 2. (by way of supplementary submissions) on 18 March 2026. The relevant Rule 24 Order 26A of the Rules provides for two types of pre-action discovery. This application is for the first, namely to identify a potential party. 25 As noted, the plaintiffs' Originating Summons was brought pursuant to O 26A r 3 which provides as follows: 3. Discovery etc. to identify a potential party (1) This rule applies if a person who appears to have a cause of action against a person (the potential party) wants — (a) to commence proceedings against the potential party; or (b) to take proceedings against the potential party in the course of an action to which the person is a party, but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so. (2) If there are reasonable grounds for believing that another person (the non-party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule. -- 12 of 23 -- [2026] WASC 293 HOWARD J Page 13 (3) The application shall be supported by an affidavit and a copy of both shall be served on the non-party. (4) On the application the Court may order the non-party, and if the non-party is a body corporate, a person having the management of the body to do either or both of the following: (a) to give discovery to the applicant of all documents that are or have been in the non-party's possession relating to the description of the potential party; (b) to personally attend the Court to be examined in relation to the description of the potential party. (5) If the Court orders a person to personally attend the Court, it may order the person to produce to the Court any document or object in the non-party's possession that relates to the description of the potential party. (6) The Court may direct that the examination of the person be by a registrar. (7) A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court. 26 I did not understand there to be any significant dispute as to the conditions which the plaintiffs had to meet before the Court would consider the exercise of its discretion under O 26A r 3. Those conditions were rightly described, with respect, by the Chief Justice in Reynolds v Higgins [2024] WASC 260 at [31] as well settled. They are: (a) the plaintiff wants to commence proceedings against the potential party; (b) the plaintiff has made reasonable enquiries; (c) the plaintiff has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party; and (d) there are reasonable grounds for believing that the non-party had, has or is likely to have had or to have, possession of -- 13 of 23 -- [2026] WASC 293 HOWARD J Page 14 information, documents or any object that may assist in ascertaining the description of the potential party.10 27 Consistently with the parties' submissions, and implicit in the first condition, in my view, is that the plaintiffs must 'appear' to have a cause of action against a potential, unknown party. Here, that amounts to whether it appeared that someone other than the five individuals known to the plaintiffs may have been involved in the Incident, and this was the main question in the hearing. 28 Even when the conditions quoted in [26] are met, it remains a matter of discretion as to whether such an order should be made.11 The principal threshold matter in dispute 29 The defendants contend, principally, that the plaintiffs have not satisfied the threshold question of establishing they may have a cause of action against an unknown party. 30 That is, it is submitted that the plaintiffs have not established that outside of the three defendants in these proceedings, and the additional two persons mentioned in the sentencing process (both of whom are now known to the plaintiffs), there may be another person against whom they may have a cause of action arising out of the Incident. 31 The plaintiffs submitted that: … The evidence adduced by the plaintiffs in the present application strongly suggests that other individuals agreed or combined to carry out the Gas Release Incident. The plaintiffs submit that the inference to be drawn from the following evidence is that other Disrupt Burrup Hub group members were involved in the planning and/or preparation of the Gas Release Incident: (a) Disrupt Burrup Hub's operations are coordinated by four semi-autonomous working groups each comprising eight members, including: (i) the Strategy and Operations Working Group which "coordinates the overarching structure, integrating feedback and input from across the campaign"; and (ii) the Action Working Group which "encourage and facilitate small groups of Disrupt Burrup Hub campaigners to form and get stuck into action" and 10 Reynolds v Higgins [2024] WASC 260 [31] (Quinlan CJ). 11 Reynolds v Higgins [32], [34] (Quinlan CJ). -- 14 of 23 -- [2026] WASC 293 HOWARD J Page 15 provides "training and support for well-designed actions that are in line with [Disrupt Burrup Hub's] strategy and principles." (b) Disrupt Burrup Hub protest activities are planned to avoid unnecessary disruption to the public and emergency services, and group members undertake extensive preparation, training and rehearsal before carrying out such activities. (c) The defendants did not purchase the gas cannister used in the Gas Release Incident. It was purchased by another Disrupt Burrup Hub group member in April 2023 for use in protest activities against Woodside. (d) The defendants attended a meeting with other Disrupt Burrup Hub members on 30 May 2023, two days before the Gas Release Incident. (e) On the day of the Gas Release Incident, the first and second defendants travelled to the Premises with another individual. (f) The first defendant was photographed and/or filmed by the third defendant and another individual during the Gas Release Incident. (g) A post published by "Disrupt Burrup Hub" on X at 2.48pm on 1 June 2023 includes a video of the first defendant giving a pre-recorded statement about the Gas Release Incident (Morrissey Video Statement). Given the first defendant was in police custody at this time, it can be assumed that she would not have had access to an electronic device to publish the video statement. (h) A press release published on the Disrupt Burrup Hub website on 13 June 2023 stated that five residential premises had been "raided" on 12 June 2023 and the electronic devices of "at least seven people" were seized in connection with the Gas Release Incident.12 (citations omitted) (emphasis added by underlining) 32 I will come back to these eight matters. 33 In addition, the plaintiffs submitted that certain statements made by Ms Morrissey in which she used the plural 'we' or 'our', 'strongly suggests that persons other than herself agreed that she should or combined to, carry out the Gas Release Incident'.13 12 Plaintiffs' submissions [26]. 13 Plaintiffs' submissions [27]. -- 15 of 23 -- [2026] WASC 293 HOWARD J Page 16 34 With respect, given the admitted involvement of the second and third defendants in the Incident, and the potential involvement of another two people, I do not consider that Ms Morrissey's use of 'we' or 'our' in public statements takes the matter very much further for the plaintiffs. 35 It also appeared that the plaintiffs sought to suggest that the defendants, in denying the involvement of other individuals in the Incident, may be admitting that there were such other individuals.14 That was disavowed by the plaintiffs in oral argument. I do not consider that submission is sustainable and would not have accepted it. It may be thought that it is something of a non sequitur that a non-denial, in these circumstances, would or could constitute an admission. 36 The plaintiffs also submitted that the defendants had not deposed to any matter 'which would lead … the Court to believe that they do not hold documents or information'.15 If that submission was that the defendants' not filing evidence in some way strengthened the plaintiffs' application, then I would similarly reject it. 37 These submissions, if maintained, seem to overlook that, as a matter of law, the defendants had no obligation to file evidence or to positively persuade the Court that they did not possess such documents or information. To accept the plaintiffs' submissions in these respects would be to convert assertions into some ipse dixit statement of fact. 38 Senior counsel for the plaintiffs at the hearing identified three matters from which it was said it appeared that there may be a sixth or more persons against whom the plaintiffs may have a cause of action. These were: 1. what was described as the 'Guide to DBH' which had been downloaded from the Disrupt Burrup Hub webpage.16 Of the eight matters identified in [31] above, the first two were derived from the Guide to DBH; 2. the 'example' of a protest planned at the house of the then CEO of Woodside, and Mr Davey attending the same.17 That did not appear to be outlined within the eight matters in [31] above; and 14 Plaintiffs' submissions [35]. 15 Plaintiffs' submissions [41] - [42]. 16 The Guide to DBH was CPB-4 to the Blaxill affidavit at page 18 and following. 17 Blaxill affidavit [18] and following. -- 16 of 23 -- [2026] WASC 293 HOWARD J Page 17 3. when the application was commenced in December 2023, the plaintiffs knew there were three people involved but thought there were more. Subsequently it has been established there may have been a further two involved which supported the plaintiffs' contentions that more than five people were involved. This was not in the eight matters identified in [31] above. It did not seem to be heavily pressed by senior counsel at the hearing. I have not considered it further due to its obvious lack of merit. 39 The Guide to DBH was, as accepted by the plaintiffs, a document which post-dates the Incident and was prepared by a person or persons unknown. 40 Consequently, I do not find that the document is, in context, a reliable basis from which to say that it appeared some other person or persons was involved in the Incident. 41 Even if the Guide to DBH could be read reliably with retrospective effect (a premise I do not accept), the Guide to DBH appears to: 1. set out aspirations for a person or a group planning or executing a Disrupt Burrup Hub protest action, rather than being a manual which, on its face, purports to be binding on 'members'; and 2. be premised on there being 'semi-autonomous groups'18 where because of suspicion about 'repression from police and authorities',19 communication between 'members' and groups is discouraged.20 42 In short, there is nothing, in my view, in the Guide to DBH from which it appears that more than five people may have been involved in the Incident. 43 As to the second broad matter identified in [38] above and relied upon by the plaintiffs at the hearing - namely the planned protest at the home of the then CEO of Woodside, there remains a palpable gap in the evidence as to there being any connection between the organising and staging of the two events of protest (save that they had the same target). With great respect, I simply did not understand the submission. 18 CPB-4 to the Blaxill affidavit at page 43. 19 CPB-4 to the Blaxill affidavit at page 41. 20 CPB-4 to the Blaxill affidavit at page 42 (esp. the first two points). -- 17 of 23 -- [2026] WASC 293 HOWARD J Page 18 The further factors outlined in [26] of the plaintiffs' submissions 44 The third matter identified in [26(c)] of the plaintiffs' submissions, as quoted in [31] above does not assist the plaintiffs because they have known since at least June of last year that the person who purchased the gas canister is Ms Stolarski.21 45 It may be noted that Ms Stolarski and two others were convicted (again after being charged on indictment) for their roles in the protest for which the canister was purchased (but not used). So, in short, the third matter does not give rise to the appearance of anyone else possibly being involved. 46 The fourth matter in [26] of the plaintiffs' submissions quoted in [31] above may be accepted as far as it goes. With great respect, however, it does not go past establishing the coincidence of a meeting two days before the Incident. And, somewhat to the contrary, the extensive WAPOL investigation as identified above significantly negatives, in my view, any 'appearance' from the meeting (which I would not have found in any event). 47 The fifth and sixth matters quoted in [31] above do not give rise to the appearance of another person being involved in the Incident, as contended for by the plaintiffs. The other 'individual' was identified in the sentencing process as Ms Sangalli. 48 Further, Ms Sangalli's apparent involvement in the photographing and filming of the Incident point, I find, to an appearance contrary to that in the seventh matter identified in [31] above. Further, Ms Sangalli's apparent involvement in the photographing and filming of the Incident points, I find, against the seventh matter identified in [31] above. If the post occurred at a time when Ms Morrisey was in custody (and there was no evidence to that effect before the Court), then I would have thought, in context, it appears that Ms Sangalli was involved in that post. 49 As to the eighth matter identified in [31] above, that WAPOL 'raided' five residential properties and 'seized' the electronic devices of at least seven people is against the appearance contended for by the plaintiffs. Namely, it appears that no more than the five individuals were identified through the extensive WAPOL investigation, including 21 RL-52 at page 62 of the third Lilly affidavit. -- 18 of 23 -- [2026] WASC 293 HOWARD J Page 19 the three defendants, as being involved in the Incident. At the least, it does not point to more than five people being involved. 50 The plaintiffs have clearly devoted very considerable resources to their application. That is evidently the case from the volume of affidavit material put before the Court; the written submissions filed (including reply submissions); and the briefing of senior counsel. Notwithstanding that, the evidence put before the Court does not give rise to the necessary appearance of another person or persons being involved in the Incident. 51 The plaintiffs rather baldly submitted that: It follows that each of the defendants must have information or documents that will assist the plaintiffs to identify the person, or persons, who conspired with the defendants to carry out the Gas Release Incident. 22 (emphasis added) 52 Notwithstanding that assertion is dressed as a submission, the plaintiffs have not, in my view, established that there may be another person outside of the three defendants and the fourth and fifth persons identified in the sentencing process involved in the Incident. 53 The parties agreed that the Rule require more than conjecture or speculation that some other persons were involved in the Incident. For the reasons set out above, I find that the plaintiffs' evidence and submissions do not rise above mere conjecture or speculation, and I would dismiss the application on that basis. 54 That is sufficient to dispose of the plaintiffs' application. Exercise of discretion 55 The following would arise if I am wrong and the plaintiffs have sufficiently established the possibility of some sixth or more other persons being involved in the Incident. In Reynolds v Higgins, the Chief Justice said: [34] The considerations relevant to the exercise of the Court's discretion are not closed. Ultimately, an applicant must show that the order sought is necessary in the interests of justice: that is, that the making of the order is necessary to provide the 22 Plaintiffs' submissions [40]. -- 19 of 23 -- [2026] WASC 293 HOWARD J Page 20 applicant with an effective remedy in respect of the actionable wrong of which they complain.23 (citations omitted) 56 That statement was accepted by the plaintiffs at the hearing. 57 It was also accepted by the plaintiffs at the hearing that there was no evidence before the Court: 1. of what the quantum of any damages awarded to the plaintiffs might be; 2. the financial position including assets of any of the five identified people (including the three defendants); and 3. whether any or all of the five identified persons could meet any damages award ultimately made in favour of the plaintiffs. 58 If the civil action the plaintiffs wish to commence is about compensation, it is not plain that, on the evidence before the Court, the making of the order sought is necessary to provide the plaintiffs with an effective remedy. 59 That would have counted against the exercise of discretion here. 60 That statement by the Chief Justice, quoted in [55] above, may be seen to reflect the observations made, by reference to authority, by Pullin JA in Waller v Waller [2009] WASCA 61 [43] - [45] to the effect that the plaintiffs' application would, if granted, involve a very serious invasion of privacy and confidentiality and should only be made as would be required by the interests of justice. 61 Separately, from the material put before the Court, there did appear to be a tendency on the part of the plaintiffs to conflate the Incident with the broader activities of the Disrupt Burrup Hub group. That is understandable enough if one is considering the political issue between Woodside and the Disrupt Burrup Hub group generally. The Incident forms part of the protest activities of the group to which Woodside and the plaintiffs take exception. 62 However, such a conflation is not of assistance in the resolution of the issues raised by this application. 23 Reynolds v Higgins [34] (Quinlan CJ). -- 20 of 23 -- [2026] WASC 293 HOWARD J Page 21 63 The apparent conflation in places may lead to an inference that this application is part of Woodside's broader response to discourage protests against its Projects. 64 The possibility of such conflation suggests strongly to me that the Court need be particularly careful that any order made not go beyond the Incident itself and, in the words of the Chief Justice quoted above, not go beyond what is necessary to provide the plaintiffs an effective remedy. Order 26A r 3(4)(b) 65 It may be noted that the plaintiffs seek not only discovery, but the personal attendance of the defendants in Court to be examined. 66 If it be right that discovery under O 26A is an invasive interference with a person who is not a party to an action (as I noted above), then that observation must apply with more force to an order that they personally attend Court to be examined. 67 It may be thought that the extraordinary nature of such an order is also demonstrated by the Court's and plaintiffs' inability to identify a case in which such an order had been made. In support of this part of the application, the plaintiff cited Downer Utilities Australia Pty Ltd v Alinta Energy Transmission (Chichester) Pty Ltd [2022] WASC 354 [12] and Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484 [39]. Both of those cases, as accepted by senior counsel for the plaintiffs, concerned applications to cross-examine in interlocutory applications, and had no bearing on this part of the plaintiffs' application. 68 Given the findings I have made above, I do not need to separately consider this part of the application. A further matter 69 The following was disclosed by me at the beginning of the hearing of the application. 70 In the lead-up to the hearing, my chambers became aware that the part of Court and Tribunal Services which is responsible for the security of the courts, tribunals and judicial officers in this State had been contacted by Woodside's senior security advisor. -- 21 of 23 -- [2026] WASC 293 HOWARD J Page 22 71 It is not uncommon for that part of Court and Tribunal Services to contact a chambers in the lead-up to a hearing which has some particular feature of public prominence or some other political dimension which may attract some greater than usual public interest. 72 However, from the communication between that part of Court and Tribunal Services and my chambers it appeared that it had been suggested by Woodside that there be a meeting between that part of the Court and Tribunal Services and Woodside's security advisor. 73 My chambers made it clear that I considered that it would be inappropriate for me or my chambers to become aware of anything that was discussed at such a meeting. I also expressed my concern that such a meeting may give rise to a perception that the Court, broadly conceived, may be working or co-operating with the plaintiffs. 74 I wish to make plain that I do not know if such a meeting took place and, if it did, what was discussed. 75 I have no reason to infer that the plaintiffs' security advisor intended in any way to tip the scales on this application. That, of course, applies with even more force to the Court and Tribunal Services. 76 Nonetheless, the importance of courts going about the administration of justice uninfluenced by external matters, and being perceived to do so, cannot be overstated. The acceptance, generally, of judicial determinations as independent depends on that. The Court must be vigilant to ensure its independence and that nothing is done which appears to undermine that. 77 I brought these matters to the attention of the parties at the hearing. I considered that I should do so as it was a matter likely to be known to the plaintiffs, but not to the defendants. 78 No party wished to address me further on these matters. -- 22 of 23 -- [2026] WASC 293 HOWARD J Page 23 Disposition 79 For the above reasons, I would dismiss the plaintiffs' application. 80 I will hear the parties, as needs be, on the final form of the orders and costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IF Associate to the Hon Justice Howard 23 JULY 2026 -- 23 of 23 --