Adani Mining Pty Ltd and Anor v Pennings [2021] QSC 343

SUPREME COURT OF QUEENSLAND CITATION: Adani Mining Pty Ltd and Anor v Pennings [2021] QSC 343 PARTIES: ADANI MINING PTY LTD ACN 145 555 205 (First Plaintiff) AND 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: BS 9186 of 2020 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 16 December 2021 DELIVERED AT: Brisbane HEARING DATE: 27 August 2021 JUDGE: Callaghan J ORDER: 1. The plaintiffs’ first application is allowed. 2. The plaintiffs’ second application is allowed. 3. The plaintiffs’ third application is allowed in part. 4. The defendant’s application is dismissed. 5. That the parties prepare minutes of orders to reflect the reasons and submissions as to costs by 4 February 2022. If the parties fail to agree on the minutes, the matter will be relisted at a date to be fixed after the parties notify my Associate that agreement cannot be reached. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – APPLICATION FOR ORDER FOR PARTICULARS – PRINCPLES APPLICABLE TO DEFERRAL OF -- 1 of 8 -- 2 PARTICULARS PENDING DISCLOUSRE – where the plaintiff seeks orders that confidential particulars be provided by example – where the plaintiff seeks that there be a confidentiality regime with respect to the confidential particulars – where the plaintiff seeks that there be a deferral of the provision of any further particulars pending disclosure by the defendant – where the defendant seeks further and better particulars – principles applicable to deferral of particulars pending disclosure COUNSEL: G Gibson QC with D Pyle and L Sheptooha for the Plaintiffs D O’Gorman SC with M Walker for the Defendant SOLICITORS: Dowd & Company for the Plaintiff Marque Lawyers Pty Ltd for the Defendant [1] These applications are the latest skirmishes within wider litigation between the plaintiffs and the defendant. The background to and nature of the cause have been rehearsed in other judgments. It makes sense for current purposes to adopt the summary prepared by Brown J in Adani Mining Pty Ltd & Anor v Pennings.1 That decision provides the background to some of the issues that must now be decided, and explains how they arise out of a conflict between the plaintiffs and a group of environmental activists known as the “Galilee Blockade.” [2] Those issues are raised in four applications before the Court – three are made by the plaintiffs and one by the defendant. [3] The plaintiffs apply here for orders that:2 1. The confidential particulars be provided by example. (The plaintiffs’ first application). 2. There be a confidentiality regime with respect to the confidential particulars. (The plaintiffs’ second application). 3. There be a deferral of the provision of any further particulars pending disclosure by the defendant. (The plaintiffs’ third application). [4] The defendant makes an application for further and better particulars (this is, in effect, an application that crosses with the first and second applications made by the plaintiffs (the defendant’s application). [5] Those applications must be considered against the background of pleadings detailed in the statement of claim. 1 [2021] QSC 162 at [1]-[22]. 2 Addressed in a sequence convenient for these reasons, these descriptions have been used for the purposes of the orders made. -- 2 of 8 -- 3 “Confidential Information” – Paragraph [5] [6] Paragraph [5] of the statement of claim introduces the concept of “confidential information” possessed by Adani Mining. This information falls into categories: “Mine Scope of Works”; “Adani Mining Relationship Information”; “Adani Mining Proposed Contractors”; “Proposed Mine Contracts”. These categories have, in the statement of claim and in these proceedings been collectively referred to as the “Adani Mining Confidential Information”. [7] The way in which the plaintiff has thus far particularised the concept of “Adani Mining Confidential Information” is not particularly informative. The statement of claim informs that the plaintiffs will “seek directions from the Court as to the manner in which any further particulars of the Adani Mining Confidential Information are to be provided.”3 To that end, as noted, the first application is that confidential particulars be provided “by example.” [8] In developing the submission that it was appropriate for particulars be provided “by example”, it was submitted that paragraph [5] of the statement of claim should be characterised as an introductory and illustrative4 paragraph. Its purpose was to establish the existence of Confidential Information relating to the plaintiffs.5 It was submitted by the plaintiffs that a fulsome provision of particulars relating to this paragraph was not necessary for the defendant to gain an understanding of the concepts involved, nor to know the case he has to meet.6 Other Relevant Paragraphs [9] The broad nature of paragraph [5] can be contrasted with the specific nature of the pleadings detailed in paragraphs [48], [54], [59], [63] and [78]. [10] Paragraphs [48], [54] and [59] refer to Confidential Information that is asserted, positively, to have been received by the defendant. These paragraphs are particularised by reference to representations the defendant has made to journalists,7 and social media posts made by the Galilee Blockade.8 They include also reference to the defendant’s (and the Galilee Blockade’s) target of a worksite operated by iPlex Pipelines9 – the fact that iPlex Pipelines was tendering for a contract with Adani Mining was not public information and had been kept confidential. [11] Paragraph [63] relates to “Targeted Contractors” of Adani. It is said that these are contractors who, in response to demands and threats from the defendant, have either not undertaken negotiations or have terminated negotiations with the plaintiffs. The particulars of this pleading refer specifically to two negotiations that were terminated.10 At this point it can be noted the plaintiffs also submit that “without disclosure or other interlocutory steps” they are unable to “identify Targeted 3 Statement of claim at [5]. 4 T1-24. 5 T1-22. 6 T1-23 lines 11-18. 7 These have been widely documented in the media. Statement of claim at [48](i)-(iv). 8 Ibid [48](v)-(xiv). 9 Ibid [48](xv). 10 Statement of claim at [63](a)-(e). -- 3 of 8 -- 4 Contractors who have not undertaken negotiations, or terminated negotiations … in response to and because of the Demands and Threats”11 of the defendant. [12] Paragraph [78] pleads the existence of what is termed an “Information Conspiracy.” The conspiracy relates to information disclosed by third parties to the defendant on the basis that it would be used by persons associated with the Galillee Blockade to: (a) facilitate Direct Action against Adani and Targeted Contractors; (b) pressure Targeted Contractors to cease negotiations with the plaintiffs; and (c) frustrate the development of the mine and rail network. [13] The particulars provided for paragraph [78] refer back to requests for information published on the Galilee Blockade Website and associated social media accounts.12 It is said that the defendant also encouraged persons to disclose Confidential Information through ‘Google Forms’ hyperlinked to the Blockade website and by emailing information to Galilee Blockade Email Accounts.13 [14] This application is set against a background where contracts between Adani and Carmichael Rail Network Pty Ltd (“Carmichael”) and their contractors are in a standard form and are altered only by the insertion of details such as names, scope of work and dollar amounts.14 There are some 230 contracts between Adani and contractors and over 100 between Carmichael and contractors. 15 There are some 1000 proposed contracts,16 and when considering proposed contracts, the number of documents that would require review is said to be in the realm of 23,000.17 The First Application – Particularisation By Example [15] As noted, the plaintiffs seek to particularise their case “by example.” At first take, such a proposal is confronting. By definition, an example is any one of a number of things. Its purpose is illustrative. By definition, a particular is something specific. Its purpose is not to illustrate, but to define. There is a Gilbertian air to the concept of “particularisation by example”. [16] The defendant champions an orthodox approach and in effect insists that in litigation particulars should identify, with precision, the case that an opposing party must meet. Neither Mr Pennings, nor any respondent to litigation, can be expected to defend themselves against examples that might illustrate, but not demonstrate. [17] Implicitly, the plaintiffs acknowledge this. They have allowed that, following disclosure, it may be incumbent upon them to amend their pleadings to alert the defendant to any specific allegation that the defendant has confidential information. 11 Statement of claim at [63](f). 12 In addition to those referred to in the statement of claim at [43] and [45]. 13 Statement of claim at [78](b)(iii). 14 T1-8 lines 1-10. 15 Affidavit Lucas Dow, affirmed 5 February 2021 at [55](a)(ii). 16 T1-10 line 31. 17 T1-10 line 37. -- 4 of 8 -- 5 [18] They maintain, however, that it is open for them to plead their case in the manner described. They point to the width of the Uniform Civil Procedure Rules 1999 (Qld) rule 161 which reads, in part: 161 Application for order for particulars (1) A party may apply to the court for an order for further and better particulars of the opposite party’s pleading. Note— Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court). (2) The court may, on an application under subrule (1), make the consequential orders and give the directions for the conduct of the proceeding the court considers appropriate--- [19] Importantly, the plaintiffs allow that, since the pleading in question is only an example, the defendant does not in reality have to defend himself against these particulars. They do not aver anything to which he could respond. They are illustrative, conceptual, and introductory. It is important to note that the plaintiff concedes explicitly that paragraph [5] does not give rise to any disclosure requirement by the defendant.18 [20] In fact, so the argument runs: “the Courts’ exercise of its power to limit the provision of particulars is necessary in the present case to overcome the oppression that arises from providing particulars with respect to 350 contracts and the negotiations for those contracts both in terms of costs and inconvenience.”19 Conclusion [21] I have not been referred to any decision that purports to authorise the course proposed,20 and there is something counterintuitive about the whole procedure. However, so long as the concessions identified in [19] are understood clearly, I am prepared to allow that the plain terms of rule 161 are wide enough to accommodate it. If the plaintiffs are held to those concessions, the defendant should suffer no prejudice. In those circumstances, the plaintiff’s first application should succeed, and the defendant’s application must be dismissed. The Second Application - Confidentiality [22] The plaintiffs submit that once the concept of “particularisation by example” is understood in the way it is explained above, they are in a position to insist that the particulars can remain confidential. 18 T1-25-25. 19 Further outline of submissions for the plaintiffs at [29](b). 20 T1-25-39. -- 5 of 8 -- 6 [23] The defendant again counters with some conventional wisdom. He points out that whilst some authority might allow the withholding of disclosed material from a defendant, there is none that goes so far as to withhold from the defendant’s knowledge the basis of the case that is brought against him – and that is what the particulars are. [24] If cloaking particulars in confidentiality would frustrate efforts to obtain meaningful instructions and compromise the progress of the trial at any stage, beginning with disclosure, the defendant’s points would be well made. However, as noted, the particulars by example do not of themselves raise any expectations of the defendant. [25] By reason of this (for particulars, unusual) characteristic, I do not believe they have to be disclosed. There is no forensic need, nor prejudice sustained if they are not. On the other hand, considerations canvassed in detail by Brown J21 remain relevant, and support the need for non-disclosure. The plaintiffs’ second application should also succeed. I have already noted that the defendant’s application should be dismissed. The plaintiffs’ third application – for deferral of the provision of any further particulars pending disclosure by the defendant [26] I was referred to many cases said to be relevant to the way in which this application should be approached. A number of principles can be distilled directly from those authorities, and others emerge from consideration of the forces that are at work in this type of situation. I proposed to the parties, and they accepted, that I should proceed on the following basis: 1. There is a discretion to make such orders. 2. They should be regarded as atypical, but orders may be made if the interests of justice are satisfied by permitting such a course. The ultimate objective is to mould the Court’s procedures so as to serve these interests. 3. One situation in which the discretion might be exercised is where the defendant has knowledge of relevant facts to which the plaintiffs do not have access. Especially is this so where the obscured material must be discovered if the plaintiff is to establish his right to relief at the trial. 4. Factors that may have a bearing on the way in which the discretion might be exercised include: a. whether the plaintiffs have exhausted the means available to obtain information needed to advance their case; b. whether the plaintiffs have then identified, with as much precision as is reasonably possible, the nature of their case; c. whether, after doing these things, the plaintiffs can point to a discernible factual foundation for their case, such that their request cannot be dismissed on the basis that it is no more than a fishing expedition; d. whether the factual foundation appears on the face of the materials, without the need for further explanation; 21 Adani Mining Pty Ltd v Pennings [2021] QSC 162 at [60]-[69] and [73]. -- 6 of 8 -- 7 e. whether the plaintiffs acknowledge the need for and express a willingness to provide further and better particulars after discovery by the defendant has been effected; and f. whether and to what extent the making of the order may cause hardship for the defendant. [27] Those principles must then be applied to an application which is made in relation to separate paragraphs in the statement of claim, specifically [48], [54], [59], [63] and [78].22 [28] I see similarities in [48], [54], [59] and [78]. These paragraphs are particularised23 by reference to comments posted on Twitter, and other statements imputed to the defendant on the basis of reports by journalists. Further, they point to the fact that an organisation by the name of iPlex Pipelines was targeted at a time when it was, confidentially, tendering for a contract with Adani. From such facts it is said that an inference can be drawn that, in response to the defendant’s solicitations, confidential information has been disclosed to the defendant.24 [29] In fact, some of the statements said to have been made to journalists might be thought to amount to an overt admission that this was indeed the case, and that, as quoted, “Adani employees (were) leaking valuable information …”.25 In such ways the plaintiffs point to a correlation between these public statements and the confidential information that is the very essence of this claim. [30] The defendant supported his request for those particulars to be furthered and bettered with the proposition that the plaintiffs know who their employees and contractors are and should, for example, by simply contacting them, be able to work out which of those provided the defendant with confidential information. From there, so the argument runs, the plaintiffs can identify what the information was and calculate any loss suffered as a result of disclosure. [31] Given the nature of the plaintiff’s concerns, it is not difficult to conclude that they have in fact done what they can to find the source of disclosures. It is also not difficult to contemplate the challenges that might be involved in that exercise – those who may have breached relevant duties are unlikely to be particularly forthcoming about that fact. It does not follow, to my mind, that because the plaintiffs know who their employees and contractors were, they must know who the defendant was talking about when he was talking to journalists, nor that the plaintiffs can work out the information that the defendant received from such people. [32] Further, the plaintiffs have adduced evidence relevant to the disposition of this point. The affidavit material referable to the nature of enquiries made thus far is unchallenged. The plaintiffs have also explained the limitations to that which is possible. They are hampered, for example, by the fact that electronic communications have been retained only for a limited period. In the case of some contractors (iPlex, Greyhound, Downer), there is specific evidence to meet the defendant’s argument. 22 T1-19-8-10. 23 Statement of claim at [54] and [59] is particularised by the adoption of particulars for [48]. 24 T1-13. 25 Statement of claim at [48](b)(iv)(B). -- 7 of 8 -- 8 [33] In all of the circumstances this is, then, a case in which the interests of justice will be served by an exercise of the discretion to order the deferral of any requirement for further particulars of these paragraphs until a process of disclosure is completed. [34] The defendant has neither, in his defence, nor in argument, disputed any of the statements that have been attributed to him. I am unable to conclude that any particular hardship will fall upon him as a result of his being required to disclose more as regards the things about which he was talking. [35] The considerations which attend the application of deferral of particulars of [78] are slightly different, but the plaintiffs are again well-placed in a request for a deferral. This paragraph avers the existence of a conspiracy. The defendant is recorded as saying he has certain information; he knows where or from whom it was received. The plaintiffs do not, and realistically cannot now find those things out. If they do not find out, they cannot establish a conspiracy.26 [36] Applying the principles identified earlier, this also presents as a case in which the discretion should be exercised to achieve a result that is unusual, but which serves the interests of justice in this particular case. In the case of paragraph [78], particularisation should be deferred until discovery is complete. The plaintiffs’ third application succeeds to this extent. [37] The pleading made in [63], however, is in a different category altogether. In this part of the claim the plaintiffs aver that, because of demands and threats, contractors have terminated their relationship or refrained from engaging with the plaintiff. There is a distinction to be drawn between the two types of detriment asserted, and for current purposes the focus should linger on the assertion that relationships have been terminated. The plaintiffs must have the capacity to identify the limited class of individuals or organisations in respect of which these fractures have occurred. Provision of that information would at least provide the defendant with the sort of focus that will allow him to discharge his obligation of disclosure. [38] At present, and upon application of the earlier identified principles which hold that the plaintiffs’ case should be identified with as much precision as possible, it cannot be said in respect of paragraph [63] that enough has been done to warrant a deferral of particulars pending disclosure. It may be that not much has to been done before that point is reached, but at present the application to defer particularisation of this paragraph must be refused. Orders [39] That the parties prepare minutes of orders to reflect the reasons, and submissions as to costs within 35 days of the date of this judgment. If the parties fail to agree on the minutes, the matter will be relisted at a date to be fixed after the parties notify my Associate that agreement cannot be reached. 26 T1-39-35-38. -- 8 of 8 --