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  • Unreported Judgment

Waratah Coal Pty Ltd v Nicholls (No 2)

 

[2013] QSC 208

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

18 June 2013 (ex tempore)

DELIVERED AT:

Brisbane 

HEARING DATE:

18 June 2013

JUDGE:

Applegarth J

ORDER:

  1. The notices of non-party disclosure filed 21 May 2013 issued to –

(a) the Honourable Campbell Newman, Premier;

(b) the Honourable Jeffrey Seeney, Deputy Premier;

(c) the Honourable Andrew Powell, Minister for Environment and Heritage Protection;

(d) the Honourable Andrew Cripps, Minister for Natural Resources and Mines;

(e) Mr Jon Grayson, Director-General, Department of Premier and Cabinet;

(f) Mr David Edwards, Director-General, Department of State Development, Infrastructure and Planning; and

(g) Mr Barry Broe, Co-ordinator General, Department of State Development Infrastructure and Planning, are set aside.

  1. The notice of non-party disclosure filed 21 May 2013 issued to the Honourable Scott Emerson, Minister for Transport and Main Roads, is varied such that only the following documents must be produced –

“any document or documents within the period 1 May 2012 to 12 July 2012 which, alone or together with another document or documents, constitutes or evidences a direction, whether formal or informal, to the second respondent by the Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point.”

  1. The time for compliance with the varied notice in order 2 is extended to 28 June 2013.
  1. If Minister Emerson objects to the production of any documents required to be produced pursuant to the varied notice in order 2 on the grounds of privilege, Minister Emerson is to provide notice to the applicant of the objection including details of the privilege claimed by 28 June 2013.
  1. Any notice of non-party disclosure to be issued by the applicant to the Director-General of the Department of Transport and Main Roads is to –

(a)    require production of only the same category of documents set out in order 2;

(b)    be filed and served by 21 June 2013. 

  1. The time for compliance with the notice in order 5 is 28 June 2013.
  1. If the Director-General objects to the production of any documents required to be produced pursuant to the notice in order 5 on the grounds of privilege, the Director-General is to provide notice to the applicant of the objection including details of the privilege claimed by 28 June 2013.
  1. The applicant is to pay the costs of the respondents to the application, of and incidental to the application, on the standard basis, to be assessed.

CATCHWORDS:

Procedure – Discovery and Interrogatories – Discovery and Inspection of documents – discovery of documents – where the applicant made an application for orders for non-party disclosure – where matter had not proceeded by way of pleadings – whether documents sought are directly relevant – whether notices for non-party disclosure should be set aside

Uniform Civil Procedure Rules 1999 (Qld) r 242, r 247

COUNSEL:

P Travis for the applicant
M Hindman for the respondents

SOLICITORS:

Hopgood Ganim Lawyers for the applicant
Crown Law for the respondents

HIS HONOUR:   This is an application by Waratah Coal Proprietary Limited for orders for non-party disclosure.  Non-party disclosure is really only available where the parties are involved in a proceeding which engages the rules, and here the matter has not proceeded by way of pleadings, and it is not my intention, really, that it should do so, because I have decided, for various reasons, that the proceeding should be dismissed.  However, I left open scope for certain further disclosure to be made, and I made orders on 22 March 2013 for the respondents in the main proceeding to give certain disclosure.

 

The applicant Waratah Coal Pty Ltd purported to issue notices for non-party disclosure, and objection was taken on various grounds to the notices.  Compliance with those notices has been stayed until now. 

 

I have the advantage of written and oral submissions, and, for the reasons that were exposed during the course of the hearing, I am not satisfied that most of the documents that are sought are directly relevant to the issue in the proceeding, which, shortly stated, is whether the Shareholding Ministers’ letter, which is pointed to by Waratah as constituting a direction, is such a direction.  It seems to me that the application for non-party disclosure proceeds on a number of false assumptions, and has not demonstrated that most of the documents that are sought are directly relevant.

 

What has occurred is that in compliance with the directions that I made, the respondents have disclosed certain documents.  One of the documents that was disclosed included documents that were tabled at a meeting on 22 May 2012.  Those documents in turn gave a summary of discussions to date with the government, and included an account of what happened at a meeting with the Premier on 1 May 2012, when the Board’s CEO attended a meeting with the Premier and others.  I note immediately that the Shareholding Ministers were not in attendance at that meeting, but other Ministers were, including the Minister for State Development, Infrastructure, and Planning, who is the Deputy Premier.

 

A document which is on a page marked 299 in the affidavit of Mr Prescott gives an account of what happened at that meeting, and, in general terms, what was announced was the government’s decision to stop what was then proposed to be the expansion and development of certain ports and NQBP projects.  What is recorded in that minute does not relate specifically to the termination of the process.  It relates to a variety of matters, including environmental approvals and the like.  However, it appears that the question arose following that meeting, as to whether there would be a direction from the Shareholding Ministers.  It does not seem to me that the contents of the discussions on 1 May 2012 or 8 May 2012 add anything other than some background.

 

It would have been surprising if the Minister for State Development’s letter of 18 May 2012 came completely out of the blue.  But what is important is not what was stated by way of government policy in relation to the Abbott Point expansion, which was conveyed clearly enough in the Minister’s letter of 18 May 2012, but what direction, if any, was given by either or both of the Shareholding Ministers.  I am not satisfied that documents that were held by the Premier or other attendees at the meeting on 1 May 2012 are directly relevant, or that, if they are directly relevant, which I doubt, whether it is appropriate, as a matter of discretion, to order them to comply with the notices for non-party disclosure.

 

It has to be recalled that what is relevant to the proper construction of the Shareholding Ministers’ letter is how it would have been understood by the recipients of that letter, and their understanding of it might have been coloured by, for example, a meeting with one or other of the Shareholding Ministers, in which they said, “You can expect a direction,” or words to that effect.  If that was said, then the letter might take on a different complexion.  Similarly, if it had been said at the 1 May 2012 meeting that a direction would be given by the Shareholding Ministers, then that might affect the way the Board later interpreted a letter that was received from the Shareholding Ministers.  But it is not said that the 1 May meeting 2012 indicated that a Shareholding Minister would send a direction.

 

In fact, what appears to have happened is that after the meeting, the CEO of the Board participated in a further discussion with an Assistant Director-General of the Department of Premier and Cabinet and raised the question of whether the request from the 1 May meeting would form a direction from Shareholding Ministers.  And so it cannot be said that the Board interpreted what had been said at that meeting of 1 May 2012 as indicating that such a direction would be given.

 

What in fact happened was that the CEO tabled, at the Board meeting on 22 May 2012, a record of the discussions that had happened to date, being discussions with the Premier on 1 May 2012, discussions with the Director-General, Premier, and Cabinet on 8 May 2012, a meeting with the Co-ordinator General on 2 May, 4 May, and 7 May 2012, and, importantly, further meetings that occurred with the Co-ordinator General on 21 May 2012, and, of course, the letter from the Deputy Premier of 18 May 2012.  That is the background narrative, and, equipped with that note, the Board then proceeded, on 22 May 2012, to instruct the CEO to liaise with departmental officers about a variety of matters, and the matters took the course that I have indicated in my previous judgment.

 

The remote possibility exists that although the respondents have not disclosed any document recording their intention to give a direction that someone else somewhere anticipated that such a direction would be given.  But whether such a person, be it the Premier or a public servant, anticipated that the Shareholding Ministers would give such a direction is really only peripherally relevant to whether such a direction was given, and whether the Ministers even intended to give such a direction.  It seems to me that the resolution of this proceeding depends upon proper attention to the fact that what is relevant here is how the letter would be interpreted by its recipient.  And it may well have been interpreted as a direction if, for example, the Ministers or someone on their behalf said that a direction was going to be given.

 

The material before me does not disclose that at any of the meetings in early May anyone said to the Board that a direction would be given from the Shareholding Ministers.  As matters developed, and without having to repeat what I said in the judgment, the Board’s attention was directed to some specific matters, including whether exclusivity arrangements under APRAs would continue.  The Board then, at its next meeting on 26 June 2012, decided on a particular course of action, and resolved that a letter be sent to the Shareholding Ministers.  I am not satisfied that there was any indication from the government that, as at the meeting on 22 May 2012, that a direction from the Shareholding Ministers was to be anticipated, and the disclosure that has been given to date does not reveal that there were any meetings or communications with the Shareholding Ministers in which they previewed that such a direction would be given.

 

In the circumstances, I consider that the notices are far too wide.  They have the problem that this is a matter that has not proceeded by way of pleadings.  But even if it had, and if I had ordered that the affidavits stand as pleadings, I consider that the notices have sought documents that are outside of an appropriate timeframe, and they seek documents that are not directly relevant. 

 

I am conscious, though, that Minister Emerson is not a party to the proceedings, and although, whilst he is formally a non-party, it would be as well for the resolution of the proceeding if he and his Department were subject to the same obligation to disclose that has been imposed upon the other Shareholding Minister, Mr Nicholls.

 

Subject to hearing from counsel as to the terms of any order that is to be made, I would be minded to make an order that Mr Emerson give disclosure in at least the same terms as that ordered in respect of Mr Nicholls.  In that regard, I have considered whether the timeframe should be expanded to take account of the fact that discussions occurred between the government and the Board as early as 1 May 2012, albeit discussions that did not involve the Minister.  I have been asked to make an order as against Minister Emerson that predates 1 May.  However, weighing the possibility that he may have received something prior to 1 May, as against my scepticism as to whether he received anything after 1 May that might be characterised as evidencing a desire by the Premier or anyone else that there should be a direction, I think the proper compromise is to make an order requiring Minister Emerson to give disclosure in essentially the same terms as  Minister Nicholls, but from 1 May 2012.

 

I am conscious that imposes a broader obligation upon him than is imposed upon Mr Nicholls, whose obligation dates from 18 May.  However, I do not consider that anything of substance is to be gained by a broader search for documents of the general kind that were sought in the notices, and I am not persuaded that the possible existence of documents whereby other Ministers and public servants may have anticipated that a direction would be given as being directly relevant to whether a direction was in fact given.  That really depends, as I have said during the course of the hearing, upon what was known to the Board by reference to their dealings, and it is their disclosure which illuminates what they knew and what they were told by way of communications with the Shareholding Ministers or anyone else as to whether the letter which they in fact received was to constitute a direction.


Accordingly, subject to hearing from the parties as to the terms of an order, what I have in mind is a direction that requires Mr Emerson to give disclosure in the same terms as Minister Nicholls has been ordered to give, but to have the timeframe commence on 1 May 2012.

 

...

 

HIS HONOUR:   Under rule 247, subrule (3), unless the Court otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.  However, an order can be made under subrule (3) if, having regard to the following, the Court considers that the circumstances are justified:  (a) the merit of the objections;  (b) the public interest in efficient and informed conduct of litigation;  (c) the public interest in not discouraging objections in good faith by those not a party to the litigation.  The objections have been upheld.  In fact, it was open to me to set aside all of the notices, because, amongst other things, the one to Mr Emerson was also too wide.  The objections had substantial merit.  There is public interest in the efficient and informed conduct of litigation.

 

That is why it is quite appropriate for parties to press for compliance with non-party notices, and it is also important for parties who are served with such notices to ensure that they are not burdened by unnecessarily wide requests.  And there is a public interest in the respondents to this application making objections of good faith.  There is no suggestion that the objections were not made in good faith.  Having regard to the success enjoyed by the respondents and the merit of their objections and the limited success that the applicant obtained, which was in the nature of a concession properly made during the course of the hearing and on the day of the hearing, I consider the appropriate order is that the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Waratah Coal Pty Ltd v Nicholls & Anor (No 2)

  • Shortened Case Name:

    Waratah Coal Pty Ltd v Nicholls (No 2)

  • MNC:

    [2013] QSC 208

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    18 Jun 2013

Litigation History

No Litigation History

Appeal Status

No Status