Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 24) [2020] QLC 21

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 24) [2020] QLC 21 PARTIES: Cherwell Creek Coal Pty Ltd (ACN 063 763 002) (applicant) v BHP Queensland Coal Investments Pty Ltd (ACN 098 876 825) QCT Resources Pty Ltd (ACN 010 808 705) BHP Coal Pty Ltd (ACN 010 595 721) QCT Mining Pty Ltd (ACN 010 487 840) Mitsubishi Development Pty Ltd (ACN 009 779 873) QCT Investment Pty Ltd (ACN 010 487 831) Umal Consolidated Pty Ltd (ACN 000 767 386) (respondents) FILE NO: MRA1332-08 DIVISION: General division PROCEEDING: Application to set aside a subpoena DELIVERED ON: 26 May 2020 (ex tempore) DELIVERED AT: Brisbane HEARD ON: 26 May 2020 HEARD AT: Brisbane PRESIDENT: FY Kingham DECISION: I dismiss the application to set aside the subpoena. The parties are to agree on orders to give effect to these reasons. -- 1 of 4 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS AND STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – SUBPOENAS – where the affected parties applied to set aside a subpoena served by the respondents in accordance with orders made by the Land Court – where the affected parties objected to producing the subpoena documents on the basis that they lack relevance, and they are confidential and commercially sensitive – where the respondents submitted that the non-parties incorrectly applied the test of direct relevance – where the Court found that the documents may be required for a legitimate forensic purpose – where the Court found that the documents may contain commercially sensitive material – where the Court decided this could be overcome with an appropriate confidentiality order Apache Northwest Pty Ltd v Western Power Corporation (1998) 72 ALJR 1136, applied Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 358, cited APPEARANCES: SJ Webster (instructed by Allens) for the respondents R Jackson QC with THS Jackson (instructed by GRT Lawyers) for QCoal Pty Ltd and Energy Minerals Pty Ltd (the affected parties) [1] This is an application to set aside a subpoena issued to QCoal Pty Ltd and Energy Minerals Pty Ltd (the companies) by the respondents in these proceedings. I should note firstly, the dispute now seems to be confined to one category of documents, which relates to the exploration of EPC900. Two issues are raised. One is want of relevance. The other is the commercial sensitivity and confidentiality of information included in the categories sought. [2] As to want of relevance, the test is apparent relevance, and the relevance may lie in giving rise to a line of inquiry which is relevant to the issues before the Court, for example, by way of cross-examination. That is a formulation from Apache Northwest Pty Ltd v Western Power Corporation.1 That approach was endorsed by McMurdo J in Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd.2 1 (1998) 72 ALJR 1136. 2 [2005] QSC 358. -- 2 of 4 -- 3 [3] I accept Mr Webster’s argument that Mr Jackson, in his written submissions, has applied a more stringent test, which is more akin to the test of direct relevance that applies for disclosure under the Uniform Civil Procedure Rules 1999. I am satisfied that there is at least a legitimate forensic interest in, and therefore relevance for the purpose of subpoenas, in cross-examining Mr Walker about EPC900, in particular how the results of exploring that tenement at different points in time might or would have affected his decision-making in relation to EPC545 and MDLA364. In my view, that is sufficient to dispose of the application to set aside the subpoena, at least insofar as the objection on the ground of relevance is raised. [4] Mr Jackson also argued that the relevant data had been disclosed to BMA already and the focus of the argument between the parties on this point relates to exploration results between 2005 and 2013. Now, the fact that the documents have already been disclosed by a party to the proceedings is not necessarily a basis for objecting to the subpoena itself, unless oppression is the ground raised, which, it appears, it was not. The fact that information of that nature has already been disclosed tends to undermine the assertion that the information lacks relevance. It may, however, bear upon the second issue, which is confidentiality. [5] Before I turn to that, I want to make a few observations about the argument about data. Firstly, I have been presented with competing assertions about what has been disclosed already to BMA. It seems, from Mr Jackson’s oral submissions, that he means the information itself, not necessarily the documents that are sought. That is because, he says, he is instructed that the 2013 documentation, and for subsequent years, includes drilling results that are cumulative. That is, it includes results obtained in exploration before that date. [6] I have some concern about placing too much weight on an assertion which appears to be on information and belief from Mr Black (a representative of the companies), when it is not really clear what his position with the companies is, and the basis upon how he can make that assertion. But in any case, it fails to take into account that this Court will, at trial, have to consider whether Cherwell Creek, through Mr Wallin, would have done what it says it would have done, at different points in time. For that reason, point-in-time results, not just cumulative data, may assist in cross-examining Mr Wallin about his intentions or likely conduct in light of that information. -- 3 of 4 -- 4 [7] Turning to the question of confidentiality, I accept that it is likely that the annual reports will contain some commercially sensitive material, and it may well be appropriate to limit access even by in-house counsel and other officers for BMA. However, without conceding confidentiality, Mr Webster has proposed a sensible course of action, which Mr Jackson did not appear to strongly contest. That involves the steps of: production; limited access by those who are in any case subject to an implied undertaking not to use the documents for an extraneous purpose (the lawyers, external lawyers, and counsel); and a period in which the parties can seek to agree upon a confidentiality order and a redaction approach for commercially sensitive material. [8] I propose to make orders that will give effect to this, dismissing the application to set aside the subpoena, adjourning the further hearing in relation to final orders on the application pending the steps that Mr Webster has outlined. I would ask the parties to seek to agree upon a formulation that gives effect to my decision. Decision: I dismiss the application to set aside the subpoena. The parties are to agree on orders to give effect to these reasons. -- 4 of 4 --