NIRODA HOLDINGS PTY LTD -v- DBNGP (WA) NOMINEES PTY LTD [2026] WASC 349

[2026] WASC 349 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : NIRODA HOLDINGS PTY LTD -v- DBNGP (WA) NOMINEES PTY LTD [2026] WASC 349 CORAM : COBBY J HEARD : 6 MAY 2026 DELIVERED : 21 AUGUST 2026 FILE NO/S : CIV 1161 of 2026 BETWEEN : NIRODA HOLDINGS PTY LTD Plaintiff AND DBNGP (WA) NOMINEES PTY LTD First Defendant DBNGP (WA) TRANSMISSION PTY LTD Second Defendant Catchwords: Practice and procedure - Application for pre-action discovery pursuant to O 26A r 4 of the Rules of the Supreme Court 1971 (WA) - Potential causes of action against first defendant for misleading and deceptive conduct and unconscionable conduct - Whether discretion to order discovery should be exercised - Turns on own facts Legislation: Australian Consumer Law s 18, s 20, s 21 -- 1 of 21 -- [2026] WASC 349 Page 2 Rules of Supreme Court 1971 (WA) O 26A r 4 Result: Application dismissed Category: B Representation: Counsel: Plaintiff : JC Yeldon First Defendant : P Honey Second Defendant : P Honey Solicitors: Plaintiff : GLF Law First Defendant : Corrs Chambers Westgarth Second Defendant : Corrs Chambers Westgarth Case(s) referred to in decision(s): Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 Morton v Nylex Ltd [2007] NSWSC 562 New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd (No 2) [2009] WASCA 146 Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 Scanlon v 2-4 McCabe Pty Ltd [2023] WASCA 135 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 -- 2 of 21 -- [2026] WASC 349 COBBY J Page 3 COBBY J: 1 By originating motion filed 9 February 2026, the applicant (Niroda) seeks 'preliminary discovery of all documents and things that are or have been in the respondents' possession that may assist [Niroda] in making the decision to commence proceedings against the respondents within the meaning of O 26A r 4 of the Rules of the Supreme Court 1971 (WA)'. 2 In the alternative, Niroda seeks that the respondents discover the following categories of documents: 2.1 [A]ll documents in the possession, custody or control of the Respondent (or a list of documents that were, but are not now in the custody, possession of control of the Respondent) relating in any way to or touching upon: (a) Original Construction Schematics of the Dampier to Bunbury Pipeline (the pipeline) that were utilised in the construction of the pipeline in the vicinity of 1801 Lakes Road, Dandalup, WA, 6207 on or the estimated lifespan of the pipeline at that location at the time of construction. (b) The consideration given by the Respondent to the Applicant's Development Approval obtained 9 December 2014, and the refusal of its consent, and the giving of its consent to the condition number 11 of the said Development Approval. (c) Documentation related to any improvements or upgrades to the pipeline over its lifespan in the vicinity of 1801 Lakes Road, Dandalup, WA, 6207 in the consideration or planning of the Respondent prior to the Applicant's Development Approval obtained 9 December 2014. (d) Any documentation or information pertaining to the process undertaken in tendering for the upgrade required for the pipeline at 1801 Lakes Road, Dandalup, WA, 6207. (e) Any documentation relating to DBP's change in interpretation of the exclusion zone as referred to in Planning Bulletin 87. (f) Documents relevant to the Pipeline Risk Management Plan created by KCTT in response to Planning Bulletin 87 was not supported by the Respondent. -- 3 of 21 -- [2026] WASC 349 COBBY J Page 4 (g) Any communication that the Respondent had with the WA State Government related to the pipeline on the property located at 1801 Lakes Road, Dandalup, WA, 6207. 2.2 All correspondence pertaining to: (a) Any documentation related to delays in connection with construction of the upgraded pipeline including but not limited to how and why they were caused and any impact on the final cost. (b) Provide an estimation of the new, extended life of the upgraded pipeline, including projections of future savings from the extended lifetime, to ascertain the financial benefit, the Respondent would obtain at the claimant's expense. 3 For the reasons which follow, I am not satisfied that Niroda has not been able to obtain sufficient information to enable a decision to be made as to whether to commence proceedings, with the consequence that the application must be dismissed. 4 The principles applicable to an application pursuant to O 26A r 4 were summarised by the Court of Appeal in Scanlon v 2-4 McCabe Pty Ltd [2023] WASCA 135 [47] - [51]. I adopt those principles without repeating them here. 5 In particular, however: (a) an applicant must show some tangible backing or objective foundation that takes the existence of the potential cause of action the applicant seeks to investigate beyond a mere allegation, suspicion or assertion that the facts necessary to give rise to a right of relief may be able to be established; and (b) the power in O 26A r 4(4) is confined to requiring discovery of documents that may assist the applicant in making the decision whether to commence the proceedings in question, such that only those documents actually relevant to a cause of action which the applicant may have should be the subject of the discovery order; and (c) pre-action discovery cannot be used to build or strengthen a case an applicant has already decided to bring: Morton v Nylex -- 4 of 21 -- [2026] WASC 349 COBBY J Page 5 Ltd [2007] NSWSC 562 [33] and the authorities there identified. 6 The background to Niroda's application is as follows. 7 By an agreement made 27 November 2013, Niroda purchased the land known as 1801 Lakes Road, North Dandalup for the purposes of subdividing and developing that land for a new housing estate. That agreement was conditional upon Niroda's plan of subdivision being approved within 9 months of the parties' entry into the agreement. 8 The land is bisected by the Dampier to Bunbury natural gas pipeline (DBNGP). The DBNGP comprises two individual pipelines, the main line and the loop line, contained within a 50m wide corridor. 9 The first respondent (DBP) owns and operates the pipeline. The second respondent is described as the pipeline operator. 10 In early December 2014, Niroda applied to the Western Australian Planning Commission (WAPC) for subdivision approval in relation to the land. 11 Niroda proposed that the land be divided into 102 proposed lots, with areas of between 1 to 3 hectares. Twenty-two lots abutted the pipeline corridor. 12 By letter dated 5 January 2015 the WAPC provided copies of the plans and documentation relating to the proposal to DBP, and asked that DBP provide any information, comment or proposed conditions pertinent to the application. 13 DBP responded to that request by letter dated 5 February 2015 to the WAPC, in which DBP relevantly said: DBP in principle supports the subdivision proposal however; we wish to provide the following comments on the submission because the proposal as presented has the possibility of affecting the integrity and operation of the gas pipelines. Proposed Lots 1- 8 and 32 -102 DBP has no objections to the proposed eastern lots 1- 8 and 32 - 102 as they will not be directly impacted by the DBNGP. -- 5 of 21 -- [2026] WASC 349 COBBY J Page 6 Proposed Lots 9 - 31 • Prior to the commencement of any works associated with the subdivision approval, a comprehensive Qualitative Risk Assessment is required to identify all technical concerns arising from the subdivision proposal i.e. road crossings, services crossing etc. The Qualitative Risk Assessment and all the necessary mitigation measures that are identified in the Risk Assessment will be at the cost of the developer. … • The existing pipeline depth of cover must be maintained and there shall be no excavation/cutting works permitted In the DBNGP corridor. • Building and development envelopes should be set to recognise the restrictions on the land by virtue of the presence of the DBNGP corridor and the appropriate setback distances contained in Planning Bulletin 87 should be strictly adhered to. (emphasis added) 14 Importantly, that letter was not provided to Niroda. Niroda subsequently obtained a copy of it by means of a freedom of information application. 15 On 10 March 2015, the WAPC granted approval for the subdivision of the land, subject to various conditions. Condition 11 was as follows: Prior to the commencement of subdivisional works, the landowner/applicant shall prepare and implement as part of the subdivisional works a pipeline risk management/protection plan in accordance with Planning Bulletin 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region. (DBNGP (WA) Nominees Pty Ltd) 16 In that approval, the WAPC nominated DBP as the body responsible for providing written advice to the WAPC that condition 11 had been fulfilled. Niroda was also advised that Niroda was responsible for obtaining that advice, which was to be submitted to the WAPC together with (amongst other things) a copy of the deposited plan with confirmation that the plan had been submitted to Landgate. 17 Niroda claims that it waived the condition in the agreement to purchase the land that it obtain approval of its plan of subdivision from the WAPC on the basis of the conditional approval. -- 6 of 21 -- [2026] WASC 349 COBBY J Page 7 18 Planning Bulletin 87 states that one of its purposes is to reduce potential risk arising from the rupture of pipelines during adjacent construction work. It expressly states that potential mitigation measures to manage risks to acceptable levels include increasing the wall thickness of the pipeline. 19 The Planning Bulletin states, in part: The pipeline owner is required to operate and maintain the pipeline consistent with the requirements of their pipeline licence, regulated by DoIR. This involves the assessment and management of risk consistent with the requirements of AS2885, which should establish that the level of risk should be low, negligible or as low as reasonably practicable, and that the level of individual fatality risk meets the relevant EPA criteria. The process for preparing a pipeline risk management plan is: a) The applicant should contact the pipeline owner as early as possible regarding the scope of the risk management plan and need for an AS2885 qualitative risk assessment and/or qualitative risk assessment of the subject proposal or application, and potential risk mitigation measures to facilitate development within the setback area. The pipeline owner and the applicant should reach agreement at this stage on an appropriately qualified consultant to undertake the risk assessment, the process, information to be supplied by the pipeline owner and outcomes required to facilitate and ensure a comprehensive risk assessment in a timely manner. b) The responsibility to prepare the risk management plan and undertake the risk assessment lies with the applicant. c) The pipeline owner will provide the consultant with the information and access to relevant data necessary to complete the risk management plan and risk assessment. d) The risk assessment will determine which (combination) of the selected mitigation measures will reduce the level of risk to low, negligible or as low as reasonably practicable to meet the relevant EPA individual fatality risk criteria. The findings of the risk assessment and the selected mitigation measures should be presented in a clear, precise and unambiguously worded report. e) The applicant should discuss the recommendations of the report and risk assessment with the pipeline owner and document the agreed mitigation measures and their area of application in the risk management plan, which should not be open to differing interpretations. As a minimum the plan should document: -- 7 of 21 -- [2026] WASC 349 COBBY J Page 8 • the mitigation measures; • the timing and responsibility for the installation of the mitigation measures; • any ongoing management measures; • the cost of implementing the mitigation measures, both initial costs of construction and ongoing maintenance cost; and • responsibility for these costs. f) Following endorsement by the pipeline owner the applicant should then forward the risk management plan as part of the planning proposal to the relevant planning authority. 20 Niroda engaged a consulting firm known as KCTT to prepare a pipeline risk management plan. KCTT produced a report dated 5 August 2015. There is no evidence to suggest that Niroda communicated with the defendants regarding the appointment of KCTT, as suggested by the Planning Bulletin, nor is there any evidence to suggest that KCTT communicated with the defendants in the course of preparing the KCTT report. 21 On 2 November 2015, a risk assessment workshop meeting coordinated by a firm known as Pipeline Integrity was held to discuss what measures might be required in order to ensure the DBNGP remained sufficiently safe in light of the subdivision. Representatives of Niroda, DBP and KCTT attended that workshop. 22 Australian Standard AS2885 identifies four primary location classes within which a pipeline route may be located, being: Rural (R1) Land used for rural activities where population is generally distributed in isolated dwellings Rural (R2) Land used for 'Rural Residential' or equivalent purposes Residential (T1) Land that is developed for community living, where multiple dwellings exist in proximity to each other and dwellings are served by common public utilities -- 8 of 21 -- [2026] WASC 349 COBBY J Page 9 High Density (T2) Land developed for high density community use 23 A report prepared by Pipeline Integrity recorded that a location classification review was performed for the relevant section of the DBNGP as part of the meeting, the result of which was that the area abutting the 22 proposed lots should be reclassified as R2. 24 DBP disputed that it agreed with that reclassification, or that the classification of the area should determine the steps required to ensure that the risks to safety be as low as reasonably practicable. 25 In any event, by letter dated 5 February 2016 DBP informed Niroda that: At the time of the construction of the DBNGP and during each expansion, an assessment is undertaken to ascertain the forecast land usage within each locality of the DBNGP to determine the design conditions appropriate for that locality. That assessment involves reviewing publicly available information and discussions with relevant government agencies. The purpose of doing this is because: • The licence granted to DBP by the WA Government under the Petroleum Pipelines Act 1969 (WA) (PPA) to own, operate and expand the DBNGP requires DBP to comply with relevant standards relating to high pressure gas transmission pipelines; • One of these standards is Australian Standard AS2885 (Gas and Liquid Petroleum) (AS2885); and • AS2885 requires the pipeline to be designed to certain levels depending on the type of land usage to be experienced on the land traversed by the pipeline. These design levels have been assessed as required to ensure that all risks are reduced to the standard of "as low as reasonably practicable" (ALARP). As a result of information available at the time of the construction of the DBNGP in the locality of the North Dandalup Proposed Subdivision, the mainline and loop line were designed for a rural land usage class, known as R1 (being rural areas that are generally unpopulated or feature occasional, isolated residences), under AS2885. As a result, AS2885 requires pipelines traversing land within this R1 location class to have a certain wall thickness, be buried to a certain depth of cover and to meet certain other design conditions. Should there be a change in land use over and in the vicinity of the DBNGP over time, AS2885 requires assessment by DBP to ensure the risks presented by the change in land use are managed appropriately in -- 9 of 21 -- [2026] WASC 349 COBBY J Page 10 the design and mode of operation of the pipeline to the standard of ALARP. The Proposed Subdivision will involve a change in land use that requires a re-assessment of the appropriateness of the design and operation of the DBNGP to ensure all risks are managed to the ALARP standard. DBP has consulted with the Western Australian Planning Commission as part of the grant of the WAPC Approval. … As part of Condition 11, on Monday 2 November 2015 a risk assessment workshop was held with relevant parties, including representatives from each of Niroda and DBP, to identify all new and existing risks materialising due to the significant changes to land use arising from the Proposed Subdivision. DBP has subsequently analysed changes to the design and mode of operation of the DBNGP that would need to be made to ensure that all risks resulting from the change in land usage that will arise, should the Proposed Subdivision proceed, are managed to the standard of ALARP. These changes are intended to then form part of the pipeline risk management/protection plan that the landowner/applicant is required to prepare and implement to comply with Condition 11. … The increase in population density caused by the Proposed Subdivision creates a significant change in land use over and in the immediate vicinity of the DBNGP pipeline corridor which, without changes to the design and mode of operation of the DBNGP, consequently imposes a significant change to the risk profile of the DBNGP such that the risks are not being managed to the standard of ALARP. … DBP has investigated all possible mitigation measures available for implementation to ensure that all risks are managed to the standard of ALARP. DBP has assessed the appropriate location class of the DBNGP as a result of the proposed subdivision and analysed the design basis, capacity and operating conditions of the DBNGP, the measurement length of any potential catastrophic failure and the potential number of fatalities arising from any such failure. DBP advises that one of the following measures will need to be implemented in order to ensure that all risks are managed to the standard of ALARP, thereby ensuring DBP can meet its obligations under the PPA, Safety Case and appropriate standards. They will also need to be included in the pipeline risk management/protection plan that the landowner/applicant is required to -- 10 of 21 -- [2026] WASC 349 COBBY J Page 11 prepare and implement as is required by Condition 11 (Implementation Measures): (a) The following works be undertaken in respect of the pipeline: • The replacement of that part of both the existing mainline pipe and loop line pipe within the area covered by the Proposed Subdivision between Readheads Road and Lakes Road and for a distance of 680m along the pipeline corridor on either side of those roads (being pipe that is designed to allow the R1 (rural) land usage class) with heavy-wall pipe designed to allow the T1 (residential) land usage class (T1 Pipe Replacement); and • The burying of the T1 Pipe Replacement to the same depth of cover in the pipeline corridor as the current pipework; or (b) The increase in the size of the lots forming part of the Proposed Subdivision to bring the combined societal risk within acceptable levels, such that each lot overlapping with the DBNGP pipeline corridor is no less than 680m x 680m (46.24 ha) in size. In accordance with the WAPC Approval, the execution of the Implementation Measures is at the cost of Niroda. 26 By the same letter, DBP informed Niroda that DBP was in the process of finalising a submission to the Economic Regulatory Authority to obtain approval for DBP recovering the costs of replacing the relevant section of the DBNGP directly from its customers, which would reduce or negate the costs to Niroda if the submission was successful. 27 Niroda contends that, by that letter, DBP changed its position from: (a) that stated in its letter to the WAPC dated 5 February 2015 (which was not provided directly to Niroda); (b) what was stated in the KCTT report; and (c) what is said had been agreed at the meeting on 2 November 2015 regarding the reclassification of the land. 28 In my opinion, the contention that DBP had approved lots 9 to 31 of the proposed subdivision on anything other than an 'in principle' basis, subject to considering an appropriate risk assessment, is not -- 11 of 21 -- [2026] WASC 349 COBBY J Page 12 arguable. The terms of DBP's letter to the WAPC dated 5 February 2015 are not capable of being construed in the manner Niroda asserts. 29 It should also be borne in mind that Niroda had not, at that stage, seen that letter. Niroda knew no more of DBP's position than that Niroda was required to satisfy condition 11, a condition imposed by the WAPC. 30 Nor can it reasonably be said that DBP was obliged to accept the report prepared by KCTT without demur, if for no other reason than it had not been prepared in accordance with Planning Bulletin 87. 31 As to the third point, assuming for present purposes that it had been agreed on 2 November 2015 that the land should be reclassified as R2, DBP informed Niroda that it had changed its position on that matter by the letter dated 5 February 2016. As Niroda had not yet obtained DBP's advice that it had complied with condition 11, it is difficult to see what consequence arose from DBP having changed its position in that way, if that is what occurred. 32 On 29 March 2016, Niroda's agent wrote to DBP requesting that it acknowledge that condition 11 had been met. 33 On 7 April 2016, DBP responded stating that it was not satisfied that was the case and advised that it was DBP's position that the part of the pipeline which traversed the land needed to be upgraded from an R1 (rural pipe) to a T1 (urban pipe) specification. 34 The significance of the distinction is that a pipeline meeting the T1 specification is required to have thicker walls. In the present case, if the DBNGP was to meet the T1 specification along the corridor which abutted proposed lots 9 to 31 the existing pipelines required replacement along the whole of the length of those lots. 35 It appears that in June 2016, Niroda lodged a survey plan seeking endorsement of the stage one of the subdivision, which the WAPC declined on the ground that condition 11 was unlikely to be satisfied. 36 Niroda sought review of that decision by the State Administrative Tribunal in July 2016. 37 The evidence of Mr Casella, a director of Niroda, is that in December 2016 the State Solicitor's Office suggested that 'the Department' (presumably the WAPC) commission an independent -- 12 of 21 -- [2026] WASC 349 COBBY J Page 13 expert to review 'certain matters related to Niroda's subdivision', and that Niroda agreed to that suggestion. 38 As a result, a consulting firm identified as 'Logicamms' issued a report dated 17 March 2017. That report was critical of steps taken by each of Niroda and DBP in the assessment of the risks presented by the development and recommended that the assessment process 'be revisited with proper scrutiny of all current and future threats presented by the Development'. 39 Relevantly, the Logicamms report stated that, in the opinion of its authors: (a) the assessment process conducted by Niroda deviated 'from the intent of AS2885 and has contributed to disagreement with' DBP; (b) a safety management study (also known as a pipeline risk assessment) is mandated by AS2885 when land use changes occur within the vicinity of the pipeline; (c) where there are identified risks to the general public it is the licensee's obligation (here DBP) to demonstrate ALARP regardless of the location class; (d) DBP's assessment of the likelihood of failure appeared to overstate the likelihood associated with an event that 'actually results in catastrophic loss of life', which led DBP to require the pipeline be replaced, 'contrary to industry practice for similar pipeline encroachment situations in Australia'; (e) DBP had been rightly cautious, the proposed development representing the first time a development would encroach upon a standard wall 'rural grade' section of the DBNGP; (f) the 'measurement length' (used to assess risk consequence distances from a pipeline) calculated in accordance with AS2885 was 550m from the main pipeline and 680m from the loop pipeline; (g) assuming the proposed development had been undertaken, and the pipeline newly proposed, the location class would be nominated as T1 rather than R2; -- 13 of 21 -- [2026] WASC 349 COBBY J Page 14 (h) for an existing pipeline, whether the development was classified as R2 or T1 'could be moot point as the specific risks to the pipeline are still present and must be managed'; (i) it was impossible to review the Pipeline Integrity report regarding the 2 November 2015 meeting because it did not provide any commentary as to the basis for the risk assessments made; (j) it would be inappropriate to consider the proposed development as analogous to the existing R2 areas adjoining the DBNGP, so that DBP should review its safety case in the context of a properly constituted safety management study workshop; (k) where a new development considered T1 encroaches on an existing pipeline that is not considered to be 'Non-Rupture pipe' (such as the existing DBNGP in the relevant area here), the following protective methods were usually considered: (i) concrete slabbing of the pipeline adjacent to the development and up to the measurement length either side of the development using the standard slab design recommended by the pipeline owner; (ii) the installation of conduits at road crossings to accommodate possible future utility expansion; (iii) the use of side slabbing of the pipeline at road crossings; and (iv) the application of side slabbing for the length of the encroachment, including the measurement length; (l) those methods might be suitable in the present case, in lieu of the full replacement of both the main and loop pipelines. 40 Contrary to the position adopted by Niroda, the Logicamms report did not establish that the replacement of the DBNGP was not required. The effect of the report was no more than that there might be other steps available to reduce the risks to the ALARP level, but that assessment was yet to be made and should take place in the context of a new safety management study workshop. 41 For reasons not explained in the evidence, the new safety management study workshop Logicamms recommended did not occur. -- 14 of 21 -- [2026] WASC 349 COBBY J Page 15 42 Instead, Niroda appears to have proceeded with the 2016 application to the Tribunal. That application was dismissed in April 2017 because the Tribunal lacked jurisdiction to consider it, Niroda having failed to submit a diagram or plan or survey as required by s 145 of the Planning and Development Act 2005 (WA): Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57 [12] - [48]. 43 At some point not identified in the evidence, Niroda lodged another application to have the WAPC endorse its plan for subdivision of the land, and in 2018 commenced further proceedings in the Tribunal for review of the WAPC's refusal to do so on the basis that condition 11 had not been satisfied. 44 On 1 July 2020 the Tribunal dismissed that application, finding that neither the 2015 KCTT report nor a report of the results of a safety management workshop conducted by Delphi Risk Management Consulting in January 2019, which was not in evidence before me, comprised a pipeline risk management plan prepared in accordance with Planning Bulletin 87. 45 Niroda's application to the Tribunal having been dismissed, in February 2022 Niroda entered into an agreement with respondents styled the 'Heavy Wall Pipe Replacement Company Funded Construction Agreement' (the HWPR Agreement) whereby Niroda agreed to pay DBP to replace the relevant section of the DBNGP, and a licence agreement with DBP styled the 'Licence Agreement DBNGP Upgrade-North Dandalup' whereby Niroda agreed to grant DBP a licence to enter upon the area adjacent to the corridor containing the DBNGP for the purposes of the construction of the replacement pipeline. 46 In that context, Niroda asserts that it 'reasonably believes' that it may have two causes of action against DBP. 47 The first is said to be a claim for unconscionable conduct contrary to either s 20 or s 21 of the Australian Consumer Law (ACL). The second is said to be a claim for damages for misleading and deceptive conduct, contrary to s 18 of the ACL. 48 It is convenient to deal with the claim of misleading and deceptive conduct first. -- 15 of 21 -- [2026] WASC 349 COBBY J Page 16 49 Niroda identifies three misleading representations alleged to arise from DBP's conduct: (a) that there existed a zone of influence of 660 metres from the pipeline easement within which DBP would not support planning applications envisaging higher density or change of land use classification under AS2885; (b) DBP agreed to the R2 land classification at the 2 November 2015 workshop; and (c) DBP represented to Niroda that the pipeline upgrade was required as a condition of compliance with condition 11 and Planning Bulletin 87. 50 On the basis of the evidence before me there are likely to be considerable obstacles to the success of each of those claims, but it is unnecessary to consider their respective merits for the purposes of determining the present application. 51 Preliminary discovery is not available where the applicant has sufficient information to determine whether to institute proceedings. Sufficient information means no more than that which is reasonably necessary to enable the person to decide whether to commence or take proceedings: New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd (No 2) [2009] WASCA 146 [15]. 52 Whether a person has sufficient information to decide whether to commence proceedings is an objective standard but determined by reference to the knowledge and circumstances of Niroda: New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd (No 2) [14]. 53 In the present case, the representations are either recorded in writing or made in the presence of Mr Casella. It accordingly does not require further evidence of the making of the representations, and evidence of its reliance upon any of them must be available to it. 54 As for the question whether any of the representations were misleading and deceptive, Niroda contends that the KCTT report, the report of the meeting held on 2 November 2015 and the Logicamms report all support its position that DBP's conduct should be characterised as such. -- 16 of 21 -- [2026] WASC 349 COBBY J Page 17 55 If that view is correct, as to which I express no opinion, then Niroda is already in possession of sufficient information to determine whether to commence proceedings. It has evidence of the making of the representations, evidence as to why it says each representation was misleading and deceptive, and is to be taken to know the extent of any loss or damage it has suffered by any reliance it placed on that conduct. 56 The reasons why DBP made the representations Niroda has identified are not relevant to the question whether those statements were misleading and deceptive. All that is relevant is whether, considered objectively, the conduct was misleading or deceptive or likely to mislead or deceive: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 197; Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, 666; although a finding of intent to deceive may lead a court to more readily infer that the intention has been or will be effective: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 [33]. 57 Finally in this regard, it is to be noted that Niroda did not specifically seek discovery of DBP's ability to meet any award against it. 58 I am therefore not satisfied that Niroda requires pre-action discovery to determine whether it should institute proceedings in relation to the identified claims of misleading and deceptive conduct. 59 As to the identified claims of unconscionable conduct, those claims are ultimately founded on the proposition that the terms of Planning Bulletin 87, the KCTT report, DBP's alleged agreement to the R2 classification of the land at the 2 November 2015 meeting and the Logicamms report support the conclusion that adequate risk mitigation was achievable without the need to replace the pipeline. Niroda contends, in effect, that DBP adopted the position it did in order to achieve 'the commercial objective of having Niroda fund an upgrade DBP would otherwise have been obliged to fund itself'. 60 To the extent that the truth of that allegation may be inferred from the alleged inconsistency between the position adopted by DBP and the four sources of information identified, as to which I express no concluded view, Niroda has sufficient information to determine whether to commence proceedings, it not having been suggested that Niroda requires the documents sought by the application in order to obtain further expert evidence to support the identified claim. -- 17 of 21 -- [2026] WASC 349 COBBY J Page 18 61 To the extent that the allegation is founded upon Mr Casella's expressed belief to the effect that was DBP's motivation for acting as it did, it would appear contrary to portions of the Logicamms report and to comprise no more than assertion, conjecture or speculation on his part. 62 Although Niroda submitted that each category of documents sought bears a direct and rational connection to the central factual question in any substantive proceedings, namely 'whether DBP's insistence on Niroda funding the pipeline upgrade was commercially motivated or genuinely safety-driven', and that that question could only be resolved by reference to documents exclusively within the respondents' custody, that is not the case. If that allegation is not supported by the four 'independent technical assessments' identified by Niroda (noting that it is unlikely that Planning Bulletin 87 can be properly characterised as such), then the allegation that DBP acted for the purpose alleged by Niroda does not rise above assertion, conjecture or speculation on its part. 63 Although it is true that DBP unsuccessfully sought approval from the ERA to recover the costs of upgrading the DBNGP from its customers, on the evidence it did so in circumstances where Niroda sought to develop the adjoining land and, if DBP's application was unsuccessful, Niroda was responsible for meeting the costs of compliance with condition 11. There is no evidence to suggest that the DBNGP would have required an upgrade, or for that matter, any significant maintenance at DBP's cost in the immediate or any longer term had it not been for Niroda's application to change the use of the land adjoining the DBNGP. 64 A further reason why the discovery sought by Niroda is not required by it is that, on Mr Casella's evidence, Niroda had already determined to institute the proceedings prior to making the present application. 65 On 8 January 2016 Niroda commenced proceedings to set aside a statutory demand issued by DBP in respect of a debt of $274,068.07. 66 Mr Casella deposed in his affidavit sworn 8 January 2026 in support of those proceedings that Niroda intended to make an application for pre-action discovery and attached a copy of his then unsworn affidavit to be filed in support of that application, which he -- 18 of 21 -- [2026] WASC 349 COBBY J Page 19 came to swear in substantially identical terms on 9 February 2026 in these proceedings. 67 In his 8 January 2026 affidavit, Mr Casella further deposed that: The [HWPR Agreement and the Licence Agreement DBNGP Upgrade – North Dandalup] recorded the outcome of what Niroda will say was an unconscionable application of commercial pressure applied on Niroda by [DBP] and others alternatively misleading or deceptive behaviour in respect of [DBP's] approval for Niroda's planning application over its Dandalup development. Niroda intends to seek an order to either set aside the HWPR Agreement, and/or seek [DBP] and another recompense it for its' expenditure under the HWPR Agreement on the basis that DBP and another failed to exercise its approval reasonably, but in giving approval, they acted in an unconscionable alternatively misleading or deceptive way. Niroda says it was forced to enter the HWPR Agreement to proceed with its planning application. … Additionally, Niroda will seek orders setting aside the HWPR Agreement in its entirety on the grounds that it was: (a) Procured by unconscionable conduct contrary to the Australian Consumer Law. (b) Procured by misleading or deceptive conduct contrary to sections 18 and 21 of the Australian Consumer Law. (c) Entered into under economic duress. (d) Procured by [DBP's] failure to exercise its approval rights reasonably and in good faith. It will be alleged that [DBP's] conduct in maintaining an untenable position contrary to all expert evidence, for the commercial purpose of obtaining a pipeline upgrade at our client's expense, constitutes unconscionable conduct within the meaning of the Australian Consumer Law. 68 It was submitted for Niroda in these proceedings that, because Mr Casella's affidavit was filed in the proceedings to set aside a statutory demand, 'it would be contrary to principle to treat the threshold assertion of an offsetting claim as equivalent to the informed decision to litigate that substantive proceedings require'. It was further submitted that Mr Casella's evidence, being based on Mr Casella's personal knowledge of the external dealings between Niroda and DBP - the letters received, the positions asserted, the agreements entered into', could not 'reflect, and cannot substitute for, knowledge of the matters exclusively within DBP's internal records'. 69 I reject both submissions. There was no equivocation in relation to nor any qualification of Mr Casella's evidence in the statutory -- 19 of 21 -- [2026] WASC 349 COBBY J Page 20 demand proceedings, which on a fair reading demonstrated that the decision to commence proceedings had been made by 8 January 2026. Further, Mr Casella's evidence in the statutory demand proceedings is consistent with the conclusions that I have reached in respect of both of the causes of action identified by Niroda, namely that Niroda was in possession of sufficient information to determine whether it wished to pursue both causes of action prior to the commencement of the present application. 70 A plaintiff is not entitled to preliminary discovery unless he or she lacks some information reasonably necessary to make the decision whether to institute proceedings. Preliminary discovery cannot be used to strengthen a case which Niroda has already determined to bring. 71 In the present case, Niroda is aware, from DBP's letters dated 5 February 2016 and 7 April 2016 and DBP's participation in the workshop leading to the preparation of the Logicamms report (at the least), of DBP's stated reasons for not accepting Niroda's claims that the upgrade of the DBNGP was unnecessary. In circumstances where Niroda claims that position could not reasonably be justified, and Mr Casella has already determined that Niroda will institute proceedings, documents going to show that DBP did not genuinely hold its stated position are not necessary to allow Niroda to make a decision to pursue the identified causes of action. 72 I am therefore not satisfied that Niroda has established that the discovery of any of the classes of documents it seeks, or the wider discovery sought by [1] of the motion, is necessary to enable it to make a decision whether to institute proceedings, assuming that, contrary to Mr Casella's evidence, it has not already done so. 73 The application must therefore be dismissed. I will hear counsel as to costs. -- 20 of 21 -- [2026] WASC 349 COBBY J Page 21 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. RH Associate to the Hon Justice Cobby 24 AUGUST 2026 -- 21 of 21 --