Adani Mining Pty Ltd v Pennings [2025] QSC 62

SUPREME COURT OF QUEENSLAND CITATION: Adani Mining Pty Ltd v Pennings [2025] QSC 62 PARTIES: ADANI MINING PTY LTD CAN 145 555 205 (First Plaintiff) AND CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST CAN 601 738 685 (Second Plaintiff) v BENJAMIN WILLIAM DEVENISH PENNINGS (Defendant) FILE NO/S: BS9186/20 DIVISION: Trial PROCEEDING: Review ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 28 March 2025 DELIVERED AT: Brisbane HEARING DATE: 21 March 2025 JUDGE: Freeburn J ORDER: 1. By 4 pm on 28 April 2025 the defendant is to: (a) file and serve a further amended defence; and (b) give the plaintiff written notice of any objections it has to the statement of claim that was filed and served on 14 March 2025. 2. By 4 pm on 16 May 2025 the plaintiffs are to file and serve: (a) any reply to the further amended defence; (b) its response to any written notice of objections to the statement of claim; (c) in respect of each lay witness, affidavits containing the evidence-in-chief that the plaintiffs intend to rely on at trial; (d) in respect of each lay witness for which an affidavit is unable to be procured, a summary of -- 1 of 8 -- 2 the evidence which the plaintiffs expect that witness to give at trial; (e) any expert reports that they intend to rely on at trial. 3. By 3 pm on 30 May 2025 the defendant is to file and serve: (a) A report to the associate to Freeburn J on whether it proposes to bring an application in respect of the written objections to the statement of claim and, if so, the parties’ time estimates and proposed directions for the hearing of that application; (b) in respect of each lay witness, affidavits containing the evidence-in-chief that the defendant intends to rely on at trial; (c) in respect of each lay witness for whom an affidavit is unable to be procured, a summary of the evidence which the defendant expects that witness to give at trial; (d) any expert reports that they intend to rely on at trial. 4. In the event that either party requires a confidentiality regime, a draft order be provided to the opposite party and: (a) if agreed, that proposed order be sent to the associate to Freeburn J as a proposed consent order; (b) if not agreed, the parties will provide submissions and proposed orders to the associate to Freeburn J and a request for a further review. 5. The proceeding be further reviewed at 9:15am on 2 June 2025. 6. Costs reserved. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORTY COURTS – CASE MANAGEMENT – GENERALLY – where the matter was reviewed as a Supervised case – where the review was for case management and timetabling – where the parties sought separate and conflicting draft orders – where the proceeding was commenced four and a half years ago – where the proceeding’s procedural history consists of a considerable number of interlocutory applications – where the orders made should -- 2 of 8 -- 3 meaningfully progress the proceeding towards a trial – whether the proposed directions orders, of either party, should be made Adani Mining Pty Ltd v Pennings [2024] QSC 302, cited COUNSEL: DB O’Sullivan KC, with AJ Schriiffer, for the plaintiffs M Hodge KC with CA Schneider, for the defendant SOLICITORS: Dowd + Wilson for the plaintiffs Marque Lawyers for the defendant [1] On 21 March 2025 this proceeding was reviewed as a Supervised Case. The purpose of a Supervised Case List review is essentially for case management and timetabling. For that reason, the court usually anticipates a short hearing, generally uncontested, where the parties concentrate on the next steps to progress the case to a trial. [2] That was not the character of the review on 21 March 2025. [3] The parties attended the review relying on submissions, affidavits, lists of material to be relied on, and there were objections, and ‘duelling’ draft orders. Neither party provided any notice to the court that this may be the case. The notional 15 minutes allocated to the review came and went. The result was that, given the volume of the submissions (oral and written), and the extensive material referred to, I was unable to make case management decisions there and then. The Duelling Orders [4] The core of the present dispute is essentially ‘where to from here’. The plaintiffs, Adani Mining Pty Ltd and Carmichael Rail Network Pty Ltd (both of which I will refer to as Adani), seek draft orders to this effect: (a) by 29 April 2025, a defence to the second further amended statement of claim - which was filed and served on 14 March 2025; (b) by 16 May 2025 a reply; (c) a conference involving the lawyers for both parties to agree a confidentiality regime for certain particulars; (d) another conference designed to agree further disclosure and a confidentiality regime; (e) as soon as practicable, but at least 7 days before the next review, a report to my Associate on the conferences, a draft of any agreed orders and proposed directions; (f) a further review after 16 May 2025. [5] The draft orders proposed by the defendant, Mr Pennings, went in a different direction. Mr Pennings’ proposed orders were that: -- 3 of 8 -- 4 (a) by 21 April 2025 Adani file and serve: (i) in respect of each lay witness, affidavits containing the evidence that Adani intends to rely on at trial; (ii) in respect of each lay witness for whom an affidavit is unable to be procured, a summary of evidence which Adani expects the witness to give at trial; and (iii) any expert evidence on which Adani intends to rely at trial. (b) a further review after 21 April 2025. [6] It can be seen that Adani wishes to proceed with the amended pleadings whereas Mr Pennings seeks orders requiring Adani to put on its evidence. [7] Mr Pennings’ motivation for the orders he proposes is his contention that the second further amended statement of claim is defective. Three examples were given of the alleged defects with the pleading. Those examples were contested. The examples were not fully argued, and they were put forward merely as examples to illustrate Mr Pennings’ submission that, if the case continues on its present trajectory, all that will happen is that there will be further disputes about the adequacy of the statement of claim, and further amendments. [8] Adani resists the idea that its pleading is defective. Adani claims that it is in the position where it was required to respond to attacks on their pleading without any proper notice. [9] Because of the nature of the contest, I have taken some time to review the nature and the progress of this case. Neither party objected to my reviewing the court file for the purposes of deciding how best it should be case managed. The Nature of the Claims [10] The first plaintiff, Adani Mining Pty Ltd, commenced constructing the Carmichael Mine, an open cut mine in the Galilee Basin in Central Queensland. At the same time the second plaintiff, Carmichael Rail Network Pty Ltd, commenced construction of a 200km long railway line connecting the Carmichael Mine to Abbot Point Terminal and Port. [11] In a judgment delivered in December 2024 (discussed below) Brown J described the defendant, Mr Pennings as: “…involved in the Galilee Blockade, where he and a number of like- minded people, passionate about addressing climate change, were involved in protesting and taking what is described as “Direct Action” to try and stop Adani and Carmichael Rail developing the Carmichael Mine (a coal mine) and Carmichael Rail Network linking the mine to the existing rail network). That action involved not only Adani and Carmichael Mine but contractors, who are described as “Targeted Contractors”. These include companies, organisations and others engaged by or negotiating with Adani to work on the Carmichael Mine or Carmichael Rail Network or subcontracted to those engaged by Adani or Carmichael Rail. In particular, in these proceedings, it is alleged that the Galilee Blockade ran two campaigns which are described -- 4 of 8 -- 5 as the “Infiltration Campaign” and the “Dob In Campaign”. They were run through Galilee Blockade Website and other Galilee Blockade social media accounts and some mainstream media.” 1 [12] Brown J described the two campaigns in this way: “[3] The Infiltration Campaign involved the Galilee Blockade encouraging persons to seek employment with the plaintiffs and obtain and disclose confidential information of Adani and confidential information of Carmichael Rail to be used to facilitate Direct Action against the plaintiffs and Targeted Contractors and to pressure Targeted Contractors to withdraw from contracts and/or negotiations with the plaintiffs or cease to perform their work or otherwise frustrate the development of the Carmichael Mine or Carmichael Rail Network. [4] The Dob In Campaign was similarly described on various webpages of the Galilee Blockade Website and the Galilee Blockade social media accounts and is said to have involved the Galilee Blockade seeking persons in possession of confidential information of the plaintiffs to disclose that information to be used in a similar way as the Infiltration Campaign.”2 [13] The plaintiff has pursued the following causes of action: (a) receipt and misuse of confidential information; (b) conspiracy to injure by lawful means; (c) conspiracy to injure by unlawful means; (d) the tort of intimidation; (e) inducing breach of contract; (f) an apprehended tortious interference in contractual relations in the future. [14] The first of those causes of action was abandoned in August 2023. The Chequered Procedural History [15] The proceeding was commenced in August 2020 – four and a half years ago. It started with a relatively short battle in which the plaintiffs succeeded in obtaining an interlocutory injunction.3 In September 2020, Martin J ordered that Mr Pennings be restrained from continuing with the two campaigns. There were two mandatory aspects to the injunction. The details of the injunction are set out in the reasons of Martin J.4 [16] Since the granting of the injunction in September 2020 the proceeding has descended into something resembling trench warfare. The battlegrounds have included: 1 In the plaintiffs’ pleading Mr Pennings is described at the spokesperson, or one of the spokespersons, for the Galilee Blockade. Adani Mining Pty Ltd v Pennings [2024] QSC 302, at [2]. 2 Adani Mining Pty Ltd v Pennings [2024] QSC 302, at [3]-[4] 3 There was an earlier ex parte application heard by Dalton J which failed. 4 [2020] QSC 249. -- 5 of 8 -- 6 (a) applications by the plaintiffs to establish a regime of confidentiality for certain particulars and disclosure; (b) an application by Mr Pennings for further and better particulars; (c) further applications by the plaintiffs for confidentiality in relation to the particulars; (d) a further application by Mr Pennings for further and better particulars; (e) an application by Mr Pennings to strike out parts of the statement of claim; (f) an application by Mr Pennings to stay the enforcement of some interlocutory costs orders; and (g) an application by Mr Pennings to discharge the interlocutory injunctions granted by Martin J in September 2020. [17] And so, some four and a half years into the litigation, the plaintiffs have recently filed and served their fourth version of the statement of claim and now expect, by their proposed directions, a further amended defence, a reply and a regime for particulars and disclosure. This is in respect of events that occurred between 2015 and 2020 – that is between five and ten years ago. [18] The proceeding has not languished through a lack of resources. The judgment of Brown J in December 2024 explains that a costs statement prepared by the plaintiffs, in respect of some costs orders in favour of the plaintiff, claimed $1.1million. That was described by Her Honour as a “startling amount” given the applications occupied less than two days hearing time, albeit with some level of complexity.5 [19] On any view, the litigation has consumed large slabs of the parties’ resources and the court’s resources. [20] It is hard to escape an overall impression that the parties are mired in the trenches of interlocutory warfare and that, whilst the parties are more than willing combatants, the case is making no real progress towards a trial. The Essential Conflict [21] The case management choice is a difficult one. There is certainly some power to Adani’s submission that it is essential that the issues be properly defined by the pleadings before further steps are taken – including by requiring the parties to put on their evidence. [22] On the other hand, if the history of this litigation is any guide at all, the new round of pleadings is likely to lead to new battlegrounds about the adequacy of the pleadings, particulars, or disclosure. In fact, the correspondence between the solicitors already assumes some further attacks on the most recent version of the statement of claim, and responses to those attacks. In short, the likelihood is that by the second half of this year – five years after the litigation was commenced – the case will be stuck in the same or similar trenches with little prospect of any meaningful progress towards a trial. 5 Adani Mining Pty Ltd v Pennings [2024] QSC 302, at [208]. -- 6 of 8 -- 7 [23] In the circumstances, as I suggested to the parties during the course of argument, an appropriate case management direction is to, in effect, make the directions proposed by both sides. That is to make orders directed to both finalisation of the pleadings and to the filing and service of the evidence-in-chief. [24] The only downside in that dual approach is that the parties may need to supplement their evidence if any new issues arise in the course of the new round of pleadings. [25] However, the plaintiffs’ latest pleading is presumably a document prepared with the benefit of proper proofs of evidence or, at the least, very detailed instructions. The plaintiffs must be able to file and serve their evidence-in-chief on the basis of the issues as presently pleaded. The proceeding after all has been on foot for a very long time. [26] If the subsequent defence or reply raises new issues then the plaintiffs may well be afforded a reasonable opportunity to add to their evidence-in-chief. [27] The position is similar for the defendant. The defendant resists filing and serving a defence because it has objections to the latest version of the statement of claim. But the defendant does not say that it cannot plead to the latest version of the statement of claim. It has pleaded to the previous versions. [28] In the circumstances, orders will be made that blend both parties’ contentions as to the appropriate orders. That is not done as a compromise but rather with the objective that both parties will be required to achieve some real progress towards a trial. The orders will be as follows: 1. By 4 pm on 28 April 2025 the defendant is to: (a) file and serve a further amended defence; and (b) give the plaintiff written notice of any objections it has to the statement of claim that was filed and served on 14 March 2025. 2. By 4 pm on 16 May 2025 the plaintiffs are to file and serve: (a) any reply to the further amended defence; (b) its response to any written notice of objections to the statement of claim; (c) in respect of each lay witness, affidavits containing the evidence-in-chief that the plaintiffs intend to rely on at trial; (d) in respect of each lay witness for which an affidavit is unable to be procured, a summary of the evidence which the plaintiffs expect that witness to give at trial; (e) any expert reports that they intend to rely on at trial. 3. By 3 pm on 30 May 2025 the defendant is to file and serve: (a) A report to the associate to Freeburn J on whether it proposes to bring an application in respect of the written objections to the statement of claim and, if so, the parties’ time estimates and proposed directions for the hearing of that application; -- 7 of 8 -- 8 (b) in respect of each lay witness, affidavits containing the evidence-in-chief that the defendant intends to rely on at trial; (c) in respect of each lay witness for whom an affidavit is unable to be procured, a summary of the evidence which the defendant expects that witness to give at trial; (d) any expert reports that they intend to rely on at trial. 4. In the event that either party requires a confidentiality regime, a draft order be provided to the opposite party and: (a) if agreed, that proposed order be sent to the associate to Freeburn J as a proposed consent order; (b) if not agreed, the parties will provide submissions and proposed orders to the associate to Freeburn J and a request for a further review. 5. The proceeding be further reviewed at 9:15 am on 31 May 2025. 6. Costs reserved. -- 8 of 8 --