Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 20) [2019] QLC 37

LAND COURT OF QUEENSLAND CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 20) [2019] QLC 37 PARTIES: Cherwell Creek Coal Pty Ltd ACN 063 763 002 (applicant) v BHP Queensland Coal Investments Pty Ltd ACN 063 763 002 QCT Resources Pty Ltd ACN 010 808 705 BHP Coal Pty Ltd ACN 010 595 721 Mitsubishi Development Pty Ltd ACN 009 779 873 QCT Investments Pty Ltd ACN 010 487 831 Umal Consolidated Pty Ltd ACN 000 767 386 QCT Mining Pty Ltd ACN 010 487 840 (respondents) and QCoal Pty Ltd ABN 99 010 911 234 Drake Coal Pty Ltd ACN 138 221 600 Drake Mine Management Pty Ltd ACN 612 261 453 QCoal Sonoma Pty Ltd ACN 117 116 784 QCoal Sonoma Washplant Operations Pty Ltd ACN 160 686 993 QCoal Drake Holdings Pty Ltd ACN 142 403 389 Northern Hub (Drake) Pty Ltd ACN 609 547 033 (the affected parties) FILE NO: MRA1332-08 DIVISION: General Division PROCEEDING: Applications for non-party disclosure -- 1 of 4 -- 2 DELIVERED ON: 6 September 2019 DELIVERED AT: Brisbane HEARD ON: 19 July 2019 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: 1. The applications which are filed documents 461, 462, 463, 464, 465, 466, 467, 468, 469 and 471 are adjourned for further hearing on a date to be fixed by the Registrar after both of the following have occurred: (a) all joint expert reports are filed; and (b) the parties have either: (i) revised their pleadings, or (ii) informed the Court they do not intend to revise their pleadings, as a result of the joint expert reports. 2. Costs are reserved. 3. The applications which are filed documents 449 and 470 are dismissed with no order as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DOCUMENTS IN POSSESSION OF NON-PARTY – where the respondents applied to lift the stay of 10 notices of non-party disclosure – where the principle ground of objection to the notices was relevance – where the applicant had indicated it would refine its pleadings once all joint expert reports were filed – where the applications were adjourned with no order as to costs until the pleadings are revised Uniform Civil Procedure Rules 1999 r 242(1)(a) Creswick & Ors v Creswick [2009] QSC 219, applied Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 15) [2018] QLC 39, considered APPEARANCES: SJ Webster (instructed by Allens) for the respondents DP O’Brien QC with T Jackson (instructed by GRT Lawyers) for the affected parties -- 2 of 4 -- 3 [1] BHP and the other respondents (BMA) to a claim for compensation by Cherwell Creek Coal Pty Ltd have applied to lift the stay of 10 notices of non-party disclosure it issued in these proceedings. [2] The notices seek documents about approaches for finance by, or on behalf of affected third party companies, which are members of the QCoal Group. The notices seek documents created in the period between March 2016 or May 2016, depending on the notice, and December 2017. [3] The objections of the affected third parties had the effect of staying the notices.1 The grounds of objection are lack of relevance, the breadth of the descriptions of the categories of documents, and the commercially sensitive and confidential nature of the documents. [4] Dealing with the three grounds in reverse order, the parties agree the Court could deal with the third objection by making orders to restrict access to any confidential material. [5] As for the second objection, BMA is open to revising the description of the categories of documents. During argument, counsel for BMA said the objective was to secure documents that would reveal the extent of QCoal’s capacity to secure refinance.2 BMA did not need to understand everything about the motivation for and fate of those applications. However, BMA does seek information about the nature of QCoal’s financial status during the period identified, and the reasons financiers gave for their decisions on any refinance applications. [6] The sharp contest between BMA and the affected parties is about the first ground, the relevance of the documents. BMA makes its argument about relevance on a strict reading of the pleadings. It relies on observations about the pleadings in another disclosure decision in this case.3 Then, I referred to BMA’s submission that the effect of Cherwell Creek’s particulars (filed on 26 April 2017) was that QCoal’s ability to support Cherwell Creek between 2008 and 2017 is in issue. I observed that Cherwell Creek did not contest that interpretation of the pleadings.4 1 Uniform Civil Procedure Rules 1999 r 246. 2 T 1-16, line 19 to T 1-17, line 20. 3 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 15) [2018] QLC 39 [12]. 4 Ibid [13]. -- 3 of 4 -- 4 [7] The affected parties approach relevance by interpreting Cherwell Creek’s case with reference to expert reports and Christopher Wallin’s statements of evidence, as well as the pleadings. They say Cherwell Creek’s case is not that it would have required QCoal’s financial support in 2016 and 2017. The evidence referred to by the affected parties does cast some doubt on the relevance of the documents. [8] The pleadings generally define relevance for the purpose of non-party disclosure.5 Cherwell Creek is not a party to these applications and I have not had the benefit of their submissions about the case it wants to prosecute at trial. Further, this case is subject to the Court’s procedure for Court Managed Expert Evidence.6 Relevant joint expert reports are still outstanding. The matters in issue will likely be refined once the parties consider the matters agreed by the experts. Cherwell Creek has previously foreshadowed its intention to revise its pleadings once it has all joint expert reports. [9] BMA wants access to relevant documents as early as possible. It is concerned disclosure might cause difficulties shortly before the trial. However, BMA did not identify any particular expert who might want or need to refer to the documents the subject of these notices. Nor did BMA identify any other potential prejudice if I adjourned the applications until it is clear what will be in dispute for the hearing. [10] The Court has a discretionary power to refuse disclosure or to vary or set aside the notices. However, I consider the better course is to adjourn the applications for further hearing on a date to be fixed by the Registrar after both of the following have occurred: (a) all joint expert reports are filed; and (b) the parties have either: (i) revised their pleadings, or (ii) informed the Court they do not intend to revise their pleadings, as a result of the joint expert reports. [11] In those circumstances, I will reserve the question of the costs. FY KINGHAM PRESIDENT OF THE LAND COURT 5 Creswick & Ors v Creswick [2009] QSC 219 [14]; UCPR r 242(1)(a). 6 Procedure for Court Managed Expert Evidence (Practice Direction 3 of 2018). -- 4 of 4 --