Adani Mining Pty Ltd v Pennings (No 3) [2025] QSC 264

SUPREME COURT OF QUEENSLAND CITATION: Adani Mining Pty Ltd v Pennings (No 3) [2025] QSC 264 PARTIES: ADANI MINING PTY LTD ACN 145 555 205 (First Plaintiff) CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685 (Second Plaintiff) v BENJAMIN WILLIAM DEVENISH PENNINGS (Defendant) FILE NO/S: SC No 9186 of 2020 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 October 2025 DELIVERED AT: Brisbane HEARING DATE: 1 August 2025 JUDGE: Freeburn J ORDERS: 1. The plaintiff’s application filed on 18 June is dismissed. 2. The defendant’s application filed on 27 June is dismissed. 3. I will hear the parties on costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – Where the plaintiffs brought a two- phase application – where phase one of the plaintiffs’ application seeks orders requiring the defendant to answer questions (or interrogatories) – where phase two of the application seeks orders relieving the plaintiffs from their burden of proof in respect of 24 allegations – where the plaintiffs argue the defendant has abused the court’s processes by taking steps after the commencement of the proceedings to intentionally destroy or remove documentary evidence from his possession or control – where the court can grant leave to issue interrogatories pursuant to rules 229 and 230 of the Uniform Civil Procedure Rules 1999 (Qld) – where delay is relevant to the court’s discretion – whether the court should exercise its discretion to grant leave to issue interrogatories -- 1 of 16 -- 2 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS ANSWERING PLEADINGS – OTHER MATTERS – where the defendant brings a cross-application to seek dispensation from the usual rules of pleading and to be relieved of any requirement to file and serve affidavits by way of evidence-in-chief – where the basis of the defendant’s cross application is his right to privilege against self-incrimination – where the defendant must show, or it must be clear, that there is a real and appreciable risk of criminal prosecution or a tendency to expose a person to penalty – whether the court should grant the defendant leave to dispense from the usual rules of pleading and to be relieved of any requirement to file and serve affidavits by way of evidence-in-chief Uniform Civil Procedure Rules 1999 (Qld), r 223(2)(b), r 229, r 230, r 367 Anderson v Australian Securities and Investment Commission (2013) 297 ALR 546; [2012] QCA 301, cited CC Containers Pty Ltd v Lee (No 2) [2012] VSC 149 at [18], cited Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22, applied Sorby v The Commonwealth (1983) 153 CLR 281; [1983] HCA 10, cited COUNSEL: DB O’Sullivan KC, with E L Robinson and A J Schriffer, for the plaintiffs M Hodge KC, with C Schneider, for the defendant SOLICITORS: Dowd + Wilson for the plaintiffs Marque Lawyers for the defendant Introduction [1] This is a collection of further interlocutory disputes between the parties borne out of two applications.1 [2] The plaintiffs (Adani) filed a two-phase application on 18 June 2025. By that two- phase application Adani seeks (1) orders requiring the defendant, Mr Pennings, to answer questions (or interrogatories); and then (2) orders relieving the plaintiffs from their burden of proof in respect of 24 allegations in the third further amended statement of claim. That relief from the burden of proof is to be achieved by either striking out the defence to those allegations, with no leave to replead; or by orders reversing the onus of proof and requiring Mr Pennings to disprove those allegations.2 1 There are numerous prior disputes. The previous disputes in the course of this year are [2025] QSC 62 and [2025] QSC 157. 2 The nature of the application is summarised in the overview section of Mr Pennings’ written submissions on this application. -- 2 of 16 -- 3 [3] On 27 June 2025 the defendant, Mr Pennings filed an application seeking to modify the rules of pleadings because of Mr Pennings’ claim to privilege against self- incrimination. Adani’s Application [4] Adani’s application rests on an assertion that, immediately after the proceeding was commenced, Mr Pennings: (a) set about deleting the majority, if not all, of the relevant communications on three personal social media platforms; and (b) simultaneously “lost” administrative access to various relevant social media platforms.3 [5] And so, Adani’s application to reverse the onus of proof relies on first establishing that Mr Pennings has abused the court’s processes by taking steps after the commencement of the proceedings to intentionally destroy or remove documentary evidence from his possession or control. Adani alleges the purpose was to frustrate the fair hearing of this proceeding.4 [6] The parties did not require that the court finally determine whether there was an abuse of process. Instead, Adani was content to rely on the court’s power to order a party to furnish evidence where there is a reasonable suspicion that its processes have been abused, at least for the purposes of the first phase of its application. Mr Pennings was also content to proceed without having the court determine the factual allegations concerning Mr Pennings’ alleged destruction of documents. That stance was taken in the interests of efficiency and expedience. [7] That this serious issue was ‘parked’ creates problems. Even if the question is whether there was a reasonable suspicion, it would be useful to fully understand the basis of the reasonable suspicion. And, as will be seen, Adani made submissions as to how the electronic material came to be deleted and the access was terminated. Mr Pennings has provided some explanation in an affidavit, but Adani contends that the explanations as to the termination of his access are implausible. Nevertheless, the case was argued without a serious contest on the allegations of destruction of documents. [8] For present purposes I accept Adani’s submission that there is a prima facie case of an abuse of process. Although Mr Pennings said that issue was contested, no further evidence or submissions addressed the issue.5 [9] Before leaving this issue, it is necessary to explain that on 11 September 2020, soon after the proceedings were commenced, Martin J ordered an interlocutory injunction in these terms: 3 Adani’s written submissions at [1]. 4 Mr Pennings’ written submissions at [3]; Adani’s reply submissions at [29]: in their reply Adani say that, at phase 2, it will not be necessary for Adani to prove that Mr Pennings took deliberate steps to make relevant documentary evidence inaccessible for the purpose and with the intention of frustrating Adani, and ultimately the court, in this proceeding. 5 Mr Pennings has already affirmed an affidavit in 2023 that addressed his failure to disclose certain of the social media documents. That affidavit is discussed below. -- 3 of 16 -- 4 “Until the hearing and determination of the proceeding or further order of the Court: (a) The Defendant must remove by 4.00 pm on 12 September 2020: (i) any statement promoting or referring to the Dob In Campaigns from the Website; (ii) the Forms; (iii) any statement on the Website to the effect that unless Targeted Contractors cease to withdraw from contracts or negotiations or otherwise cease to perform any of the work of Adani Mining or Carmichael Rail, the Targeted Contractors would be the subject of Direct Action by persons associated with the Galilee Blockade; (b) the Defendant must remove by 4.00 pm on 22 September 2020: (i) any statement promoting or referring to the Dob In Campaigns from the Social Media Accounts; (ii) any statement on the Social Media Accounts to the effect that unless Targeted Contractors cease to withdraw from contracts or negotiations or otherwise cease to perform any of the work of Adani Mining or Carmichael Rail, the Targeted Contractors would be the subject of Direct Action by persons associated with the Galilee Blockade; (c) the Defendant must not [publish etc]…”6 [emphasis added] [10] The requirement that Mr Pennings “must remove” certain statements seems to me to require the deletion of certain electronic information from a website and social media accounts. As will be explained, there will be a contest as to what Mr Pennings was justified in removing based on the authority of that order. The Dispute [11] Adani says that it did not discover any possible destruction of documents until 2023. At that time, following complaints by Adani about Ms Pennings’ “sparse” disclosure, and a threat of an application for proper disclosure, Mr Pennings provided an affidavit. Adani summarises the contents of Mr Pennings affidavit as follows: “21. As to Mr Pennings' personal accounts: (a) On a date “in or around September 2020” Mr Pennings deleted from his public Facebook account and his Twitter account “the majority (if not all)” of his communications related to the Galilee Blockade. (b) Further, on a date “in or around September 2020” Mr Pennings also deleted another personal Facebook 6 I have not included the definitions in the order. This order was in the form that was requested by Adani: see Adani’s submissions at [18] and [78(b)]. -- 4 of 16 -- 5 account, which he describes as his “private Facebook account”. As Mr Pennings acknowledges, deleting this account means that the associated Facebook Messenger account was also deleted. 22. At about the same time that Mr Pennings was deleting such messages in his personal accounts, according to his affidavit he also ceased to have administrative access to various Galilee Blockade platforms, meaning that he ceased to be able to log into those accounts. Mr Pennings states that those accounts had been “used for the purposes of carrying on the activities of the Galilee Blockade and at times, communicating with members of the public”. 23. As to Mr Pennings' loss of administrative access to the Galilee Blockade accounts: (a) On a date in “about mid-September 2020” Mr Pennings says that his login details to the Galilee Blockade Google Drive “no longer worked and [he] could not login” to it. (b) On a date in or around October 2020 (apparently “early October 2020”), he also lost administrative access to the Facebook and Twitter accounts for the Galilee Blockade. Again, his login details for each of those accounts “no longer worked and [he] could not login”. (c) On a date in or around September 2020 his login details to two email addresses used by the Galilee Blockade ([email protected] and [email protected]) also “no longer worked and [be] could not login” to them.” [12] Adani submits that Mr Pennings’ affidavit: “…establishes that almost immediately after the Court made orders against him Mr Pennings set about deleting communications and accounts containing communications concerning the Galilee Blockade or, in some cases, ‘losing’ administrative access to accounts.” [13] It is a serious allegation. And having read Mr Pennings’ affidavit, it is clear that this serious claim is contested. In paragraph 35 of his affidavit, Mr Penning says that in September 2020 he deleted various social media material in order to comply with the order of Martin J. Certainly, some material was required to be “removed” by reason of the court order. However, Adani’s submissions do not attempt to reconcile the electronic information that Martin J’s order required to be removed as against what was in fact removed. [14] Adani submits that the orders of Martin J did not require Mr Pennings to “take the course he took”,7 and that Mr Pennings’ evidence is implausible, and that even if Mr Pennings believed he could delete the information, doing so was still an abuse of 7 Adani’s submissions at [76] and [78(a)]. It is not entirely clear what is meant by ‘the course he took’ and what it is alleged Mr Pennings was entitled to do and what it is alleged he was not entitled to do. -- 5 of 16 -- 6 process. Adani even goes so far as to contend that there is nothing in the reasons of Martin J which could be interpreted as requiring Mr Pennings to ‘take the course he took’.8 However, the order of Martin J specified that Mr Pennings “must remove” certain electronic communications from the website and from the Social Media Accounts. There is nothing in the order that required that the communications be preserved. In my view, it is possible that a reasonable interpretation of the order is that it required ‘removal’ in the sense of deletion from the particular social media sites. [15] Curiously, one of the press articles published shortly after the grant of the injunction quotes an Adani spokesperson as saying that Adani would no longer pursue the proceedings if Mr Pennings undertook to “remove any online material” related to a part of the campaign and to “remove content from online channels that encourages the collation of confidential material…”.9 That language rather suggests that what Adani was seeking was the removal of content from social media platforms. Martin J seems to have used the same language. And, if material is to be ‘removed’ from a social media platform, how is it to be done if it is not to be deleted from that platform? [16] Mr Pennings’ solicitors said that he was not involved in the process by which he lost access to a number of social media platforms. Adani submits that for a number of reasons this claim is inherently improbable.10 [17] Of course, I am not in a position to finally determine any of these issues. It is sufficient to conclude that there is a prima facie case or a reasonable suspicion that the documents deleted or inaccessible were relevant and that the conduct was an abuse of process. The Basis for the Proposed Phase 1 Orders [18] Adani submits that there are three separate foundations for the orders sought in Phase 1 of its application. First the court can order a party to furnish evidence where it reasonably suspects that a party is abusing the court’s process, pursuant to its inherent power and rule 367 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). Second, pursuant to rule 223(2)(b) of the UCPR, the court may order a party to file and serve an affidavit stating the circumstances in which a specific document or class of documents ceased to exist or passed out of the possession or control of that party. Third, the court can grant leave to issue interrogatories pursuant to rules 229 and 230 of the UCPR. [19] There is no doubt that each of the three foundations give the court a discretion to require an affidavit from Mr Pennings, including a discretion to permit Adani to administer interrogatories. Mr Penning did not argue to the contrary. [20] The real issue is whether the discretion should be exercised in this case. Delay 8 Adani’s submissions at [78(a)]. 9 Ms Peacock’s affidavit at KLP-68. 10 Adani’s submissions at [27] and following. -- 6 of 16 -- 7 [21] Mr Pennings resists the application because Adani has delayed in bringing the application. [22] There has certainly been some delay. Mr Pennings’ affidavit was served in May 2023. This fresh dispute was agitated in May 2025. That is a primary delay of two years. Adani admits to a primary delay of 20 months. However, that seems to be based on an arithmetical error of about two months,11 as well as on the idea that an application could not have been properly brought by Adani until after the correspondence concluded between the parties in July 2023. [23] That primary delay, whether it is 20, 22 or 24 months, is not explained. [24] Mr Pennings alleges a secondary delay. He argues that Adani waited almost five years before seeking to interrogate. I reject that submission. Given the very extensive procedural history of the case, it is overly simplistic to assert that Adani has waited five years before seeking to interrogate. [25] However, there is a further aspect to the delay. On 25 October 2022 Brown J (who was then case managing this proceeding) ordered the parties to conduct disclosure pursuant to a document management plan. Mr Pennings made disclosure at the end of 2022. Adani says that the inadequacy of that disclosure was “striking”.12 And then independent experts, KordaMentha were appointed to recover data. In March 2023, Mr Pennings’ solicitors informed Adani’s solicitors that KordaMentha had completed their work and that nothing further was disclosable. Adani persisted with its complaints. Then in May 2023, Mr Pennings provided his affidavit regarding disclosure. There were complaints about the adequacy of that affidavit. But in July 2023, Adani’s solicitors informed the Associate to Brown J that it was the agreed position between the parties that Mr Pennings’ disclosure was complete. [26] That last step is an odd thing. It is true that Adani now accepts that disclosure is complete in that Adani accepts that Mr Pennings has disclosed all of the documents in his power or possession. But Adani challenges the reasons for that. Adani says that Mr Pennings has deliberately deleted documents and thereby confined disclosure. It may be literally true that disclosure was complete in July 2023, but the battle concerning Mr Pennings’ sparse disclosure went into abeyance only to be revived roughly two years later. [27] In an earlier decision in March 2025, I described the chequered procedural history of this proceeding.13 I was concerned then that the case was making no real progress towards a trial and that there may be new battlegrounds about the adequacy of the pleadings, particulars, or disclosure.14 Those fears have been realised with a third party battle concerning non-party disclosure in July 2025, and now this further conflict – which is anticipated to be fought in two stages. And so, the concern is that this present conflict will distract from achieving some real progress towards a trial. [28] In this case, the delays and the further delays in prospect are a strong discretionary factor against the application. It is true that in the absence of any other factor, delay 11 Adani contends that the delay is between July 2023 and May 2025 – said to be a period of 20 months. However, on my calculation, that is a span of 22 months. 12 Adani’s submissions at [37]. 13 Adani Mining Pty Ltd v Pennings [2025] QSC 62 at [15]-[20]. 14 Ibid at [20], [22]. -- 7 of 16 -- 8 in and of itself will rarely be sufficient to warrant the refusal of leave to take a significant interlocutory step.15 Here, though, the delay and the potential for further delay are strong factors against allowing interrogatories as the first step in a two-step process. And, as will be explained, there are other factors. The Effect of Delays [29] The effect of delays is significant in a case like this. Adani seeks to interrogate Mr Pennings about what happened with social media sites in about September 2020, which is 5 years ago. For example, the first interrogatory asks Mr Pennings to identify the persons who had access to four social media platforms and two email addresses. If the questions survive the challenges as being unnecessary, oppressive and vexatious, and they are required to be answered in spite of Mr Pennings’ claim to privilege against self-incrimination, the likelihood is that the answers will not be helpful or reliable. Unless Mr Pennings has an excellent and accurate memory, the likelihood is that the answers will be to the effect that he does not recall. Even worse, there is a risk that he may venture an unreliable answer.16 Or it may be that, without realising it, time will caused a deterioration in the quality of Mr Pennings’ answers.17 [30] Mr Pennings’ affidavit sworn back in May 2023 does not generate any confidence that he will now have a sound or accurate recollection of how the social media operated in September 2020. Mr Pennings uses the words “I cannot recall exactly”, or similar expressions, on 11 occasions in an affidavit that spans roughly nine pages. Thus, the concern is that the affidavit in response to any interrogatories may be qualified. The utility of the exercise is doubtful. Utility of the Exercise [31] It is obviously a serious allegation to say that a party has destroyed evidence. There is a possibility of criminal prosecution for that conduct. However, that does not mean that when such an allegation is made the proceeding should necessarily be, in effect, stayed or delayed whilst the allegation is investigated. [32] A factor relevant to the discretion is whether the proposed interrogatories would be useful – either in ascertaining the truth or in the prosecution of the case. [33] Mr Pennings is likely to claim privilege against self-incrimination which will mean that he may not be able to be compelled to answer at least some of the proposed interrogatories. Mr Pennings’ submissions foreshadow an intention to claim the privilege in respect of interrogatories 1 to 6 and 8 to 11. The concern is that Mr Pennings’ answers to those interrogatories may be used directly or indirectly against him for an offence under s 129 or 140 of the Criminal Code 1899 (Qld).18 15 This was the view expressed in J-Corp Pty Ltd v Pannell Kerr Foster (A Firm) [2004] WASC 21 at [16], a case relied on by counsel for Adani. 16 This is perhaps unlikely as Mr Pennings is legally represented. 17 See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; and The President’s Club Limited v Palmer Coolum Resort Pty Ltd [2019] QSC 209 at [85]. 18 Mr Pennings’ written submissions at [28]. -- 8 of 16 -- 9 [34] Adani contests that there is a real and appreciable risk of a criminal prosecution or genuine belief that there is such a risk. At the least there is likely to be a further battle regarding this issue. Oppressive Interrogatories? [35] As counsel for Mr Pennings points out, there are 24 numbered interrogatories proposed by Adani. Including sub-questions there are 71 questions. They go too far. Proposed interrogatory 7, for example, asks this: “Do the following still exist: (a) the Galilee Blockade Google Drive; (b) the email address ‘[email protected]’; and/or (c) the email address ‘[email protected]’?” [36] It is not immediately apparent how the answer to that question is relevant at all to the allegation of destroying evidence. The question is directed to the present situation, about five years after the alleged destruction of evidence. The concerns about relevance are not allayed by Adani’s submissions in support of that particular interrogatory: “Although Mr Pennings deposes that he lost administrative access to these accounts, he does not say, and the plaintiffs do not know, whether these accounts still exist. If one or more of them does still exist, that could be significant. Taking the Galilee Blockade Google Drive by way of example, that Google Drive is highly significant because (a) key Galilee Blockade documents appear to have been stored on it and (b) the hyperlinks on the Galilee Blockade Website (where website visitors were asked inter alia to ‘Dob In Adani’) went to Google Forms which were automatically uploaded into the Google Drive.” [37] In its reply submissions, Adani says this: “In addition, all of the proposed questions are also relevant to the substantive issues in the proceeding and thus relevant to a trial: plaintiffs’ primary submissions, [125]-[137] and [106]. For instance, one key purpose for seeking the orders presently sought is to ascertain whether repositories of documents still exist and might be accessed by the plaintiffs, for instance by notices of non-party disclosure. That is just as relevant to the substantive issues arising at trial as it is to the second phase of this application.”19 19 Adani’s reply submissions at [11]. -- 9 of 16 -- 10 [38] All of that seems to suggest that, rather than being directly relevant to a specific pleaded issue or the allegation of the destruction of evidence, Adani is undertaking an investigation. [39] Some of the other proposed interrogatories appear to be more convoluted than necessary. Examples are proposed interrogatories 1 to 6 which, as counsel for Mr Pennings points out, might easily be compressed into their proposed re-draft of question 4. [40] However, the influence of this concern as a discretionary factor is relatively modest. A sensible re-draft of the questions might be achieved fairly easily. Other Remedies [41] The parties did not explore the prospect that, if leave was refused to deliver interrogatories, Adani could separately seek a remedy or even lodge a complaint with the authorities. As the parties did not explore this, I will not do so either. Conclusions on Interrogatories [42] Balancing the discretionary factors, the delay has been considerable and roughly two years of delay is unexplained. The risk of giving leave is that the progress of the proceeding will be further disrupted. There is also the risk that leave will not achieve anything meaningful and the delays will continue. In other words, the danger is that giving leave will open a new battlefield without achieving any real progress in the litigation. [43] For those reasons, leave to deliver interrogatories is refused. Mr Pennings’ Cross Application [44] In the third further amended statement of claim filed and served in June 2025, Adani makes allegations of conduct by Mr Pennings which might also be the subject of criminal proceedings.20 In light of Mr Pennings’ assertion of his right to privilege against self-incrimination, Mr Pennings seeks dispensation from the usual rules of pleading and to be relieved of any requirement to file and serve affidavits by way of evidence-in-chief. Legal Principles [45] The legal principles are not in dispute. The privilege against self-incrimination is a substantive rule of law and a fundamental common law right. The privilege ensures that a party to criminal proceedings, civil penalty proceedings or civil litigation cannot be compelled to answer any question or produce documents, if so doing may bring that person into the peril and possibility of being convicted of a crime.21 [46] For the privilege to operate in a non-penal civil proceeding, the party claiming the privilege must show that the provision of an answer, pleading, affidavit or the 20 For convenience I will refer to this pleading as the statement of claim. 21 These principles are set out in the privilege submissions by counsel on behalf of Mr Pennings. Adani accepted those principles. The principles were explained in Sorby v The Commonwealth (1983) 153 CLR 281 and in Anderson v Australian Securities and Investment Commission [2013] 2 Qd R 401. -- 10 of 16 -- 11 production of documents, would lead to a real and appreciable risk of a criminal prosecution; and that the party claiming the privilege has a bona fide apprehension of those consequences which is based on reasonable grounds.22 [47] Counsel for Mr Pennings submits that the test as to whether there is a real and genuine basis for believing that the party is at risk of criminal proceedings is not overly rigorous. The real and appreciable risk arises if the risk cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance.23 And so, it will not be difficult to show that the provision of information or the production of documents in a civil case leads to a real and appreciable risk of a criminal prosecution when the proceeding is aimed at proving that the party engaged in particular conduct, proof of which would establish, or go a long way to establishing, that they had committed criminal acts.24 [48] On the other hand, counsel for Adani points out that to make a claim of privilege against self-incrimination in non-penal civil proceedings, a defendant must do more than make a sweeping claim for dispensation on the ground of privilege in discharging the onus. Adani submits that the defendant must establish that the provision of information leads to a real and appreciable risk of a criminal prosecution or exposure to civil penalty, and that the defendant has a bona fide apprehension of the consequence on reasonable grounds.25 The reasonable grounds inquiry requires consideration of whether information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be some material on which the court can be satisfied of these matters.26 [49] In that way, counsel for Mr Pennings relies on those cases which emphasise that the test of whether there is a real and genuine apprehension is not overly rigorous. Counsel for Adani emphasises cases that are authority for the opposite, namely that there must be substantive material on which the apprehension is based. There is no inconsistency and both propositions can be accepted. In each case the assessment that is to be made is whether there is a real and appreciable risk of prosecution. [50] Gordon J has emphasised the subjective and objective elements of the assessment: “In assessing whether there are reasonable grounds for the objection, the court must assess whether there is a “real and appreciable risk” of prosecution if the relevant information is disclosed. The gist of the privilege is that disclosure of the information “would tend to expose the claimant to the apprehended consequence”. The “reasonable grounds” inquiry requires the court to assess, having regard to the circumstances of the case and the nature of the information which the relevant person is required to disclose, whether there are reasonable grounds to apprehend danger to them from being compelled to disclose the information. This requires consideration of whether 22 Australian Securities and Investment Commission v Mining Projects Group (2007) 164 FCR 32 at [10]; Connelly and Harris v McGrath [2019] 3 QR 99 at [148]. 23 Chardon v Bradley [2017] QCA 314 at [34]. 24 Le Roi Homestyle Cookies Pty Ltd (in liq) v Gemmell [2013] VSC 452 at [12]. As explained, all these principles are summarised by counsel for Mr Pennings and are accepted by counsel for Adani. 25 Quinlan v ERM Power Limited [2023] QSC 80 at [38] relied on by counsel for Adani. 26 Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [34]. -- 11 of 16 -- 12 information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be some material upon which the court can be satisfied of these matters. The court is not limited to information in the privilege affidavit or any other material filed by the relevant person.”27 [emphasis added] The Pleadings Dispensation sought by Mr Pennings [51] Mr Pennings does not seek dispensation from all of the pleading requirements and the dispensation he seeks applies only to three groups of allegations in the statement of claim, namely: (a) Adani’s pleading (in paragraphs 80 to 86) that Mr Pennings committed an offence under s 474.17 of the Criminal Code 1995 (C’th);28 (b) Adani’s allegations (in paragraph 40A(b)-(d)) of unlawful conduct by Mr Pennings; and (c) other allegations of criminality against the Mr Penning arising from the allegations that Mr Pennings intended to, threatened to, organised and procured others to, and did himself commit to ‘Direct Action’. [52] Mr Pennings’ proposed orders are consistent with those made by the Queensland Court of Appeal in Anderson v Australian Securities and Investments Commission.29 Under that regime, for the three groups of allegations, Mr Pennings would be required to state whether each allegation of fact is admitted, not admitted or denied but otherwise excused from the requirements of the pleading rules.30 Seriousness of the Alleged Offences [53] Adani relies on the statement by Ferguson J in CC Containers Pty Ltd v Lee (No 2) to this effect: “Where, as in this case, the allegations are of a very serious nature and magnitude, the pleading alone is sufficient to establish that there is a real and appreciable risk of criminal prosecution should the matters alleged be proven.”31 [54] Adani contrasts that case, which featured allegations of very serious fraud, and this case. Here, Adani portrays its allegations in the statement of claim as being centred around allegations of tortious trespass and nuisance, occurring during protest activities, and the relatively minor offences associated with conduct of that kind. [55] The offences here are not as serious as fraud. Nevertheless, the offence under s 474.17 is relatively serious. In any event, all Ferguson J was saying in CC Containers Pty 27 Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 at [34]. 28 This offence comprises using a carriage service to menace, harass or cause offence. The maximum penalty is imprisonment for five years. 29 (2013) 297 ALR 546. 30 Dispensation is sought in respect of rules 149(1)(b), (c), 150, 157, 165 and 166 of the Uniform Civil Procedure Rules 1999. 31 [2012] VSC 149 at [18]. See also Connelly and Harris v McGrath (2019) 3 QR 99 at [152], [155]. -- 12 of 16 -- 13 Ltd v Lee (No 2) was that in some cases, the allegations are so serious that the mere pleading of those serious allegations will be sufficient.32 Her Honour’s judgment should not be taken as authority for something that roughly approximates the opposite proposition, namely that where the allegations are not so serious, the court should require additional or more compelling proof.33 Apart from the exceptional type of case referred to by Ferguson J in CC Containers Pty Ltd v Lee (No 2), the proper approach is to regard the privilege against self-incrimination as a fundamental common law right and not vulnerable merely on the basis that the allegations are not at the serious end of the scale.34 [56] But the gravity of the allegations is relevant in another way. The defendant must show, or it must be clear, that there is a real and appreciable risk of criminal prosecution or a tendency to expose a person to penalty. The more serious the claim in the non-penalty proceeding, the more likely the real possibility of criminal or civil penalty proceedings.35 That merely reflects the reality that more serious allegations are more likely to attract the attention of the law enforcement authorities. A real and appreciable risk of criminal prosecution? [57] Mr Pennings’ application for dispensation is supported by an affidavit by Ms Kiera Peacock, an experienced solicitor who acts for Mr Pennings. In her affidavit, Ms Peacock addresses each of the three groups of allegations against Mr Pennings, namely the breach of s 474.17 of the Criminal Code 1995 (C’th), the unlawful conduct allegations and the Direct Action allegations. [58] In respect of the s 474.17 allegations, Ms Peacock says that: (a) she is informed by Mr Pennings and believes that Mr Pennings understands the s 474.17 allegations against him; (b) she is informed by Mr Pennings and believes that Mr Pennings believes that there is a risk that information provided by him in this proceeding may be used, directly or indirectly, to assist in the prosecution of the s 474.17 offence; and (c) she is informed by Mr Pennings and believes that Mr Pennings’ belief about the risk is based on his understanding of the allegation and on paragraphs 30 to 34 of Ms Peacock’s affidavit, namely that: (i) Mr Pennings understands that, because of the lack of particularity and breadth of the unlawful conduct and Direct Action allegations in the statement of claim it remains possible for prosecuting authorities to commence criminal proceedings against him for matters arising out of those allegations; 32 Edelman J said something similar in QC Resource Investments Pty Ltd (In Liq) v Mulligan [2016] FCA 813 at [24]: “In a case such as this where the allegations are very serious, the circumstances will colour the extent to which a respondent must descend into detail to show a reasonable basis for dispensation”. 33 Adani’s submissions do not seem to go that far. In paragraph [27] of its privilege submissions Adani merely notes that the allegations made here are not of a serious nature. However, paragraph [43] asserts, seemingly as a point in Adani’s favour, that the allegations do not involve serious criminal offences. 34 In so far as there may be a ‘scale’ of seriousness, it is often not easy to compare different types of offences. 35 Connelly and Harris v McGrath (2019) 3 QR 99 at [153], relying on TTAC Pty Ltd v Williams [2018] VSC 79. -- 13 of 16 -- 14 (ii) Mr Pennings does not know and whether Adani or the targeted contractors have made or intend to make a criminal complaint to any relevant criminal authority; (iii) Mr Pennings understands that an investigation can be commenced by any relevant criminal authority, but he does not know whether any such investigation has been commenced or is under consideration by any relevant prosecuting authority; (d) she has observed that this proceeding has attracted significant media attention, including a number of news articles, and she is informed by Mr Pennings and believes that Mr Pennings anticipates that the proceeding will continue to attract media attention as it proceeds to trial, and believes that the media attention gives rise to the prospect that the allegations will come to the attention of the relevant investigating authorities. [59] There are a number of problems. [60] The first problem is that Ms Peacock’s affidavit states what she has been informed by Mr Pennings about his understandings, knowledge and beliefs. It may be admissible on an interlocutory application like this for Mr Pennings’ solicitor to give evidence of what Mr Pennings has told her of his understandings, knowledge and beliefs.36 But admissibility is not necessarily the same thing as adequacy.37 The weight to be given to the evidence is a matter for the court. No doubt there were good forensic reasons for Ms Peacock deposing to Mr Pennings’ state of mind as opposed to Mr Pennings himself. Nevertheless, whilst the evidence has been tendered, and is admissible, it has less weight than would be the case if the evidence was direct. [61] The second problem is that Mr Pennings’ belief appears to be based on the concept that because of the lack of particularity and breadth of the unlawful conduct and Direct Action allegations “it remains possible for prosecuting authorities to commence criminal proceedings against Mr Pennings for matters arising out of those allegations” [emphasis added].38 Of course, nearly anything is possible. The real issue is not whether prosecution is possible but whether there is a real and appreciable risk of prosecution. [62] The third problem is that it is really difficult to pin down the basis for Mr Pennings’ understandings, knowledge and beliefs. He says he believes that there is a risk that the information given in this proceeding may be used directly or indirectly to assist in the prosecution of the s 474.17 offence. That belief appears to be based on the lack of particularity in the other categories of allegations.39 If that is the basis for Mr Pennings belief, it is not properly explained. [63] The fourth problem is that Mr Pennings’ belief that he is at risk of prosecution, at least as recounted by Ms Peacock, is because he does not know of any investigation, of the commencement of any prosecution, or of any intention to bring a prosecution. Thus, Mr Pennings’ lack of knowledge of any such steps to prosecute or intention to prosecute is the bedrock on which he believes he is at risk of prosecution. I do not 36 See UCPR r 430. 37 Queensland Civil Practice (Thomson Reuters) at [UCPR.430.30]. 38 Ms Peacock’s affidavit at [30]. 39 See the cross-reference to paragraph [30] in paragraph 16(c) of Ms Peacock’s affidavit. -- 14 of 16 -- 15 understand the logic of that. Perhaps it is not intended to be logical or objective. Certainly, the logic is not explained by Mr Pennings or even Ms Peacock on his behalf. [64] In respect of the unlawful conduct allegation, Ms Peacock says that the allegations are broad enough to encompass a wide variety of allegations of criminal conduct against Mr Pennings. She says that Mr Pennings understands that. And she says that Mr Pennings believes there is a risk that information provided by him in this proceeding may be used, directly or indirectly, to assist in the prosecution of criminal charges against him. That belief is said to be based on the breadth of the allegations and the same matters discussed above in relation to the s 474.17 allegations. [65] Ms Peacock’s evidence is similar in respect of the Direct Action allegations. [66] What needs to be shown is that there is a real and appreciable risk of prosecution. The evidence does not establish that, in the more than five years since the relevant events, any representative of the Queensland Police Service, or representative of any prosecuting authority, has taken any steps to investigate, let alone steps to prosecute Mr Pennings. Nothing establishes an intention to investigate or take a step. There is no objective evidence which supports the idea that there is a real and appreciable risk of prosecution. And Mr Pennings’ subjective views seem to be based on what he views as possible, rather than what is perceived to be a real and appreciable risk. [67] There is a further problem that, because the relevant events occurred between 2017 and 2020, prosecution for offences such as public nuisance, trespass and unlawful assembly may run into time-bars. As Adani points out for those offences a one year limitation period applies “from the time when the matter of complaint arose”.40 Time- bars may not be a problem for all possible offences.41 Offences under s 474.17 of the Criminal Code 1995 (C’th), for example, are not subject to a time limit because the maximum penalty is more than six months’ imprisonment.42 Nevertheless, at the least, the passage of time will be a disincentive for any prosecuting authorities, because the passage of time means that memories will have faded, evidence may be lost, and the proof of the offence will be more challenging. Media Interest [68] Ms Peacock’s affidavit also relies on the fact that this proceeding has attracted significant media attention. Ms Peacock says that: “By way of example, in the course of preparing this affidavit, I have reviewed the following media articles which concern the progression of, and identify Mr Pennings as a party to, this proceeding. Although these media articles do not concern the Criminal Allegations, I believe that it remains possible for the Criminal Allegations to become the subject of media reports which may in tum bring the Criminal Allegations to the attention of any relevant investigating authority.”43 40 See Summary Offences Act 2005 (Qld) s 46. 41 The offence under s 474.17 is an example 42 Crimes Act 1914 (Qld) s 15B(1). 43 Ms Peacock’s affidavit at [33]. -- 15 of 16 -- 16 [69] Ms Peacock then lists 15 news articles and says: “I am informed by Mr Pennings, and believe that, based on the media attention received in this proceeding to date, Mr Pennings: a. anticipates that the proceeding will continue to attract media attention as it proceeds to trial; b. believes that such media attention gives rise to a risk that the Criminal Allegations, including any alleged offence against Mr Pennings, will come to the attention of any relevant investigating authorities.”44 [70] Adani submits that Mr Pennings has courted the media interest in this proceeding and so he cannot complain. For Mr Pennings, it is contended that both parties have commented publicly on this proceeding since its commencement. In my view, just who is responsible for the media interest is not significant or particularly relevant. [71] The real question, again, is whether there is a real and appreciable risk of prosecution – irrespective of who courted the media. [72] Through Ms Peacock, Mr Pennings says that he believes that the continued media attention means that there is a risk that the allegations will come to the attention of any relevant investigating authorities. That belief is not explained by Ms Peacock or Mr Pennings. There has already been significant media attention over the five years of the litigation. No investigations or prosecutions have been commenced. And none appear to be contemplated. [73] In any event, the media articles do not descend to discuss or explain the detail of the allegations let alone the elements of offences. The news articles appear to be mostly devoted to reporting on the ongoing litigation between the parties. And one would think that the media attention, some five or more years after the relevant events, is just as likely to dissuade any prosecuting authority from entering the fray. [74] Importantly, just why the media attention means there is a risk of prosecution, or an increased risk or prosecution is not explained. [75] For those reasons I conclude that Mr Penning has not shown that there is a real and appreciable risk of prosecution. Conclusion [76] The plaintiff’s application filed on 18 June is dismissed. [77] The defendant’s application filed on 27 June is dismissed. [78] I will hear the parties on costs. 44 Ms Peacock’s affidavit at [34]. -- 16 of 16 --