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Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd[2015] QLC 52

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd[2015] QLC 52

LAND COURT OF QUEENSLAND

CITATION:

Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive, Department of Natural Resources and Mines [2015] QLC 52

PARTIES:

Cherwell Creek Coal Pty Ltd

(applicant)

 

V

 

Chief Executive, Department of Natural Resources and Mines

(non-party)

Substantive Matter

Cherwell Creek Coal Pty Ltd

(applicant)

v

BHP Queensland Coal Investments Pty Ltd

QCT Resources Pty Ltd

BHP Coal Pty Ltd

QCT Mining Pty Ltd

Mitsubishi Development Pty Ltd

QCT Investment Pty Ltd

Umal Consolidated Pty Ltd

(respondents)

FILE NO:

MRA1332-08

DIVISION:

Land Court of Queensland

PROCEEDING:

Application for non-party disclosure

DELIVERED ON:

17 December 2015

DELIVERED AT:

Brisbane 

HEARD ON:

30 October 2015

Submissions closed 17 November 2015

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

1. That DNRM provide copies of the notice, the list of documents to which commercial in confidence objection is taken by DNRM, relevant objections, written submissions, this decision and these orders to the substantive defendants in this action (referred to collectively as BMA) by 4.00pm on 24 December 2015.

2. BMA file and serve on the applicant and DNRM written submissions by 4.00pm on 22 January 2016.

3. By 4.00pm on 29 January 2016 DNRM will provide copies to the Court of any documents BMA wishes to claim an objection of confidentiality over, with such documents being in sealed envelopes for the restricted use of the Court only and for no other purpose until further order of the Court.

4. The substantive hearing of the non-party disclosure application is listed for hearing at 10.00am on 9 February 2016.

5. BMA may attend at the substantive hearing of the non-party disclosure application and seek leave to be heard at the substantive hearing on the issue of production of the commercial in confidence documents.

CATCHWORDS:

PRACTICE AND PROCEDURE – NON-PARTY DISCLOSURE – COMMERCIAL-IN-CONFIDENCE OBJECTIONS – Where non-party objects to production of  documents on commercial-in-confidence grounds – whether documents author (the other party to the substantive action) should be served with the notice of non-party disclosure and/or the general application to determine the merits of the commercial-in-confidence objections

STATUTORY INTERPRETATION – examination of non-party disclosure provisions in Part 2 Chapter 7 UCPR as to whether the “other party” to the substantive action should be served with a notice of non-party disclosure and/or a general application to determine merits of confidentiality objections – Rules 244(1)(a), 245(2) and (4) examined

JURISDICTION AND POWERS – NON-PARTY DISCLOSURE – Order made under Rule 367 UCPR allowing “other party” to substantive matter, to provide submissions regarding commercial-in-confidence objections of non-party

Land Court Act 2000

Land Court Rules 2000, Rule 13

Patents Act 1990 (Cth)

Uniform Civil Procedure Rules, r 31, 242, 244(1)(a), 245, 246, 247, 367, Part 2 Chapter 7

Australian Securities and Investment Commission Act 2001 (Cth)

Cassimatis v Axis Specialty Europe Ltd (2013) QSC 237

Chenoweth v ING Australia Ltd (2004) QSC 143

Creswick v Creswick (2009) QSC 219

CSR Ltd v Casaron Pty Ltd (2003) QSC 126

Curry v Byrne (2007) QSC 400

Deppro Pty Ltd v Hannah (2009) 1 QdR 1

Erglis v Buckley (2004) QSC 380

Lebon v Lake Placid Resourt Pty Ltd (1995) 1 QdR 24

Leighton Contractors Pty Ltd v Western Metals Resources Limited (2001) QdR 261

Smith v O'Leary (2001) QDC 197

Westsand Pty Ltd v Johnson (1999) QSC 337

APPEARANCES:

Ms JK Chappel of Counsel for the applicant

Mr JM Horton QC and Mr A Nichols of Counsel for the Department of Natural Resources and Mines

SOLICITORS:

Holding Redlich Lawyers for the applicant

Crown Solicitor for the Department of Natural Resources and Mines

Background

  1. [1]
    This is a decision as to whether a party to a proceeding should be notified and heard with respect to documents they have an interest in, that are the subject of a commercial-in-confidence objection raised by a non-party to a notice of non-party disclosure issued under Rule 242 Uniform Civil Procedure Rules (UCPR).
  2. [2]
    On 1 October 2014 the applicant filed and served a notice of non-party disclosure (notice) upon the Department of Natural Resources and Mines (DNRM).[1] The notice required access to substantial documentation held by DNRM.
  3. [3]
    In response to the notice, the Director Advice and Litigation of DNRM wrote to the applicant on 3 October 2014 indicating that its officers were searching for the documents sought by the notice but in the interim it objected to certain classes of documents being produced under Rule 245 UCPR and reserved its right to object to the production of the remainder of the documents once they had been reviewed.[2]
  4. [4]
    By virtue of Rule 246 UCPR the objection by DNRM stayed the operation of the notice.
  5. [5]
    On 10 October 2014 the applicant filed a general application pursuant to Rule 247(1) UCPR to lift the stay and for the documents in the notice to be produced by DNRM.
  6. [6]
    On 17 November 2014 Crown Law acting for DNRM sent correspondence to the applicant’s solicitors outlining their concerns with respect to the notice. Grounds of objection listed were;[3]
  • Documents already available to the applicant
  • Scope of notice – fishing and oppression
  • Privilege and public interest immunity
  1. [7]
    The hearing of the general application was adjourned by consent and the parties attempted to resolve their differences with respect to the notice.[4]
  2. [8]
    On 27 February 2015 Crown Law delivered an extensive list of documents to the applicant’s solicitors. Some documents were made available to the applicant. Crown Law’s letter of 27 February 2015 DNRM states for the first time that an objection based on commercial-in-confidence was being made over some of the documents.[5]
  3. [9]
    At the request of the applicant, Crown Law on 6 March 2015 identified documents 2.2, 2.8, 2.14 and 2.15 as subject to commercial-in-confidence objections.[6]
  4. [10]
    The general application to determine the validity of the objections came before this Court on 30 October 2015. DNRM’s objections were identified in written submissions as:[7]
  • Oppression
  • Commercial-in-confidence
  • Documents already available to the applicant
  • Privilege and public interest immunity
  1. [11]
    In the affidavit of Paula Freeleagus and in its written submissions both filed 30 October 2015[8] and at the hearing of this application, DNRM now indicated that the respondents to the substantive action (collectively referred to as BMA) ought to be afforded the opportunity to make submissions at the hearing with respect to the commercial-in-confidence objections.
  2. [12]
    The applicant opposed BMA being notified and heard with respect to the commercial-in confidence objections made by DNRM.
  3. [13]
    After hearing oral submissions on this threshold issue, I determined not to hear submissions at that time with respect to the substantive merits of what documents should or should not be provided under the notice. I ordered on 30 October 2015 that both the applicant and DNRM file and serve written submissions with respect to:
  1. (a)
    Whether the applicant was required to serve BMA with the notice and/or with the general application; and
  1. (b)
    If BMA is not required to be served, how their interests in the commercial-in-confidence documents can be raised.

DNRM’s Submissions

  1. [14]
    DNRM submits that certain documents identified by it for which the applicant seeks production, are of a type where a claim of commercial-in confidence might reasonably be made and the documents themselves claim to be commercial-in-confidence.
  2. [15]
    DNRM has no view one way or the other whether the documents in question are (or are not) ones which BMA might rightfully claim should not be produced, due to their confidential nature. However DNRM is reluctant to produce documents of this type without knowing whether BMA wishes to assert that the documents are commercial-in-confidence and whether they object to those documents being produced on that basis.
  3. [16]
    DNRM submit that as BMA’s rights could be affected by the disclosure of these documents they should be heard with respect to same.
  4. [17]
    DNRM no longer appear to be pressing the point that BMA should have been served with the notice[9] but it submits that the applicant should have served BMA with the general application when it was filed, or as soon as the applicant became aware of DNRM’s commercial-in-confidence objections.
  5. [18]
    DNRM relies upon Rule 31 UCPR (and natural justice principles) that requires service of an application in a proceeding on any party whose interests may be affected by the granting of the relief sought.
  6. [19]
    DNRM relies upon decisions of Jackson J in Cassimatis v Axis Specialty Europe Ltd[10] and White J in Curry v Byrne[11] where the court allowed parties to the substantive action to be heard on their own applications to set aside notices of non-party disclosure.

Applicant’s Submissions

  1. [20]
    The applicant provided a useful history of non-party disclosure in Queensland Courts. This history indicates that applications for non-party disclosure were determined without notice to the other party in the substantive action. Because other parties were not notified, Courts would ensure the interests of those affected by production were safeguarded, such as ensuring only documents directly relevant to a matter in issue were produced.[12]
  1. [21]
    Rule 244(1)(a) UCPR requires a party to serve a copy of a notice of non-party disclosure on a person affected, other than a party. The applicant submits that the express exclusion of the requirement to serve a party to the proceedings is not only clear on the natural meaning of the rule itself, but it is also consistent with the historical practice.[13]
  2. [22]
    The applicant submits it is also not required to serve its general application on BMA pursuant to Rule 31 UCPR because:
  • It was only made aware of DNRM’s general commercial-in-confidence objections on 27 February 2015, and specifically on 6 March 2015 – well after it had filed its application on 10 October 2014,
  • The first time DNRM raised a specific concern that BMA should be served with the application was on the return date 30 October 2015,
  • If Rule 31 UCPR was followed, it would require the applicant to serve its general application to determine objections made by the non-party under Rule 247(1), on the very party Rule 244(1)(a) expressly required not be served with a copy of the notice of non-party disclosure. This interpretation would be contrary to the intent of the non-party disclosure rules and the historical development of non-party disclosure in Queensland.
  • The non-party disclosure provisions in Part 2 Chapter 7 UCPR are fully self-contained and deal only with the practice and procedure required for non-party disclosure. These specific procedures are not governed by the more general procedures in Rule 31. The applicant relies upon the decision of McGill DCJ in Smith v O'Leary[14] where the specific provisions in relation to costs of non-party disclosure in Rules 247 (3) and (4) were taken as being applicable to these types of matters, rather than the general costs provisions in the UCPR.
  1. [23]
    The applicant accepts that Rule 245(2) UCPR is wide enough to permit a party such as BMA to apply for leave to object to the production of documents, if they become aware of the matter. However the UCPR or cases such as Cassimatis and Curry v Byrne do not require a party such as BMA to be served with an application to determine objections to a notice of non-party disclosure, and the court ought to exercise caution in permitting a party in the proceedings to become involved in such applications.[15]

Statutory Framework

  1. [24]
    The Land Court is governed by the Land Court Act 2000 and the Land Court Rules 2000. Rule 13 Land Court Rules provides that Chapter 7 UCPR applies with necessary changes, to disclosure in proceedings in the Land Court.
  2. [25]
    Part 2 Chapter 7 UCPR contains the non-party disclosure rules.
  3. [26]
    Rule 242(1) states:

“A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not a party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document –

  1. (a)
    directly relevant to an allegation in issue in the pleadings; and
  2. (b)
    in the possession or under the control of the respondent; and
  3. (c)
    that is a document the respondent could be required to produce at the trial of the matter.”
  1. [27]
    Rule 243 prescribes the form and service of the notice of non-party discovery.
  2. [28]
    Rule 244(1)(a) states:

“(1) The applicant must, within 3 months after the issue of a notice of non-party disclosure, serve a copy of the notice on –

  1. (a)
    a person, other than a party, about whom information is sought by the notice;”
  1. [29]
    Rule 245 states:

“(1) The respondent, or a person who has been served with a notice of non-party discovery under rule 244, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the court’s leave, a later time.

(2) Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the court’s leave.

(3) The objection must –

  1. (a)
    be written; and
  2. (b)
    be served on the applicant; and
  3. (c)
    if the person objecting (objector) is not the respondent – be served on the respondent; and
  4. (d)
    clearly state the reasons for the objection.

(4) The reasons may include, but are not limited to, the following-

  1. (a)
    if the objector is the respondent- the expense and inconvenience likely to be incurred by the respondent in complying with the notice;
  2. (b)
    the lack of relevance to the proceeding of the documents mentioned in the notice;
  3. (c)
    the lack of particularity with which the documents are described;
  4. (d)
    a claim of privilege;
  5. (e)
    the confidential nature of the documents or their contents;
  6. (f)
    the effect disclosure would have on any person;
  7. (g)
    if the objector was not served with the notice- the fact that the objector should have been served.”
  1. [30]
    Rule 246 states:

“Service of the objection under rule 245 operates as a stay of a notice of non-party disclosure.”

  1. [31]
    Rule 247 states in part:

“(1) Within 7 days after service of an objection under rule 245, the applicant may apply to the court for a decision about the objection.

(2) The court may make any order it considers appropriate including, but not limited to an order-

  1. (a)
    lifting the stay; or
  2. (b)
    varying the notice of non-party disclosure; or
  3. (c)
    setting aside the notice.”

Relevant cases as to standing - and confidentiality objections

  1. [32]
    In determining whether BMA should have been served with the Notice and/or General Application, it is helpful to consider some of the more prominent decisions with respect to non-party disclosure under the UCPR.
  2. [33]
    In Leighton Contractors Pty Ltd v Western Metals Resources Limited[16] Mackenzie J held that the use of a subpoena for the purpose of obtaining non-party disclosure was an abuse of process. He said:[17]

“Rule 243(2) and r 244 relate to the giving of notice to other affected persons. The provisions of rr 243(2) and 244 recognise the intrusion involved in inspecting a non-party’s documents and the fact that persons may have a legitimate ground to object which must be taken account of as well as the legitimate claims of the party to obtain information relevant to the action and the wider public interest in the due administration of justice.”

  1. [34]
    And later he said:[18]

“The rules relating to non-party disclosure are designed to provide safeguards to a non-party upon whom a notice is served and to more remote persons who may be affected.”

  1. [35]
    In Cassimatis, Jackson J heard an application by the plaintiffs to set aside a notice of non-party disclosure issued by the first defendant against ASIC a non-party. The documents in question were provided to ASIC and prepared by them in an investigation into the conduct of Storm Financial Ltd and the plaintiffs’ involvement in Storm’s affairs. The investigation was undertaken pursuant to the Australian Securities and Investment Commission Act 2001 (Cth) and under the provisions of that Act documents received and generated are potentially sensitive and are to be kept confidential.
  1. [36]
    The plaintiffs applied to set aside the notice of non-party disclosure relying upon r 245(2) for standing.
  2. [37]
    Jackson J said:[19]

“Accordingly the Plaintiffs are potentially affected by the notice in a way which may give them a basis for an application to object to production of all or some of the documents within the ambit of the notice.

However it is unnecessary to resolve any question of standing under that rule. Pursuant to UCPR 367 the court can make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of the rules. Accordingly the court can make a direction limiting the disclosure which is to be made by ASIC in compliance with the notice, if there is good reason to do so, whether or not Rule 245 is engaged.”

  1. [38]
    Jackson J noted that r 244(1)(a) and the provisions of Part 2 Chapter 7 do not require generally that a notice of non-party disclosure be served on the other party.[20]
  2. [39]
    In terms of determining whether the documents should be exempt from production on confidentiality grounds Jackson J went onto say:[21]

“The Plaintiffs rely upon UCPR 245(4)(e) as a ground of objection, namely the ‘confidential nature of the documents or their contents.’

Although that is a discretionary ground for objection, it is not an absolute bar. In the circumstances of this case, it is reasonably likely that the documents which are in ASIC’s possession as a result of the investigation, and which may be confidential, are directly relevant to the issues raised by the first defendant’s amended defence as to the plaintiffs’ alleged misrepresentations or non-disclosures, as stated in the summary form above. As between the plaintiffs and the first defendant, in my view, the general confidential nature of any documentation or their contents does not form the basis for setting aside the notice.”

  1. [40]
    In Curry v Byrne White J heard an application by a party (a defendant), to set aside 22 notices of non-party disclosure issued by the plaintiff.
  2. [41]
    Submissions were made as follows, as to the standing of the defendant to make such an application:[22]
  • Standing authorised by r 245(2) UCPR
  • Rules 371 and 372 allow the court to correct a failure to comply with the UCPR
  • Inherent jurisdiction of the court to regulate its own processes
  • NSW authorities indicating a party to proceedings has a sufficient interest in the regular conduct of those proceedings, to invoke the Court’s power to set aside a subpoena for production of documents whether or not it has an interest in the subject documents. The grounds to set aside a subpoena are similar to setting aside a notice for non-party disclosure.
  1. [42]
    In the end White J determined that the defendant had standing to apply to set aside the notices because she had an interest in these proceedings, in that she was a residuary beneficiary and as such the costs of any non-party disclosure would come out of the estate.[23]
  2. [43]
    White J dismissed the notices of non-party disclosure as being premature.
  3. [44]
    In CSR Ltd v Casaron Pty Ltd[24] Mackenzie J gave leave to a party (third defendant) under r 245(2) to object to the production of documents, sought by 14 notices of non-party disclosure issued by the plaintiff. The documents sought from a variety of non-parties were related to the third defendant’s knowledge and experience in business and contractual matters.
  4. [45]
    Mackenzie J relevantly said:[25]

“As to standing, UCPR 245(2) seems to be intended to ensure that a person who may be affected by a notice has the right to object to the production of documents mentioned in the notice if the Court gives leave to do so.

In my view, consistently with the intent of the rule apparent from r 245(4), it would extend to a party if the notice required production of documents relating to them that went beyond what may be required to be produced under the rules. I would only make two general observations. One is that the right of a party to object to a notice given by another party to a non-party who may or may not be disposed to object is subject to leave being given and must be closely confined to ensure that it does not become a standard ploy in litigation.

It is not the purpose of giving a right to object to a party to enable that party to quarantine evidence which may otherwise be admissible for the purpose of the other party establishing part of its case.”

  1. [46]
    Mackenzie J set aside the notices of non-party disclosure as not being sufficiently descriptive.
  2. [47]
    In Westsand Pty Ltd v Johnson[26] Wilson J determined an application for production of documents via a notice of non-party disclosure. Grounds of objection included relevance and confidentiality. The case concerned arrangements that were made for the collection and delivery of large sums of money. It was submitted this information was confidential.
  1. [48]
    In terms of the confidentiality issue Wilson J held:[27]

“A party gaining access to a document pursuant to a notice of non-party disclosure is subject to an implied undertaking not to use it except for the purposes of litigation. (Consider Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509, a case concerned with discovery inter parties.) In the circumstances I would not refuse an order for production on the basis of a confidential nature of the contract.”

Should BMA have been served with the Notice?

  1. [49]
    The short answer is no. My reasons for making this finding are:
  1. (1)
    There is no requirement to serve a party to the action in the non-party disclosure provisions in Part 2 Chapter 7 UCPR. Particularly I note r 244(1)(a) which clearly states that a party need not be served with a copy of the Notice.[28]
  2. (2)
    The historical practice of non-party disclosure in Queensland does not support the concept of parties being served with notices of non-party disclosure.
  3. (3)
    Judicial authority that such service is not required from Jackson J in Cassimatis and McGill DCJ in Pickering.

Should BMA have been served with the General Application?

  1. [50]
    The short answer is no. My reasons for making this finding are:
  1. (1)
    DNRM did not advise the Applicant until 6 March 2015 (after the application had been filed and served) with any particularity which documents were subject to objection because of commercial-in-confidence concerns. Even after this advice, DNRM did not advise the Applicant until the day of the hearing, that they could not properly argue their commercial-in-confidence concerns themselves but would require BMA to do that.
  2. (2)
    The Part 2 Chapter 7 UCPR provisions regarding non-party disclosure do not require applications to determine non-party objections to be served on parties to an action. This is the historical and current state of play. Cases such as Creswick v Creswick[29](relevance and legal professional privilege); Erglis v Buckley[30](relevance); Deppro Pty Ltd v Hannah[31](privilege under the Patents Act 1990 (Cth)) and Chenoweth v ING Australia Ltd[32](relevance and uncertainty) were all determined without the other party present and presumably without being served.
  3. (3)
    Generally it does not make sense to read r 244 (1)(a) as expressly stating that the other party is not to be served with even a copy of the notice, and then require that the application to determine objections to the production of documents listed in that notice, be served on the other party to the action. Rule 31 being a general rule should not be read to intervene to require this to happen.

How are BMA’s interests in the commercial-in confidence documents to be raised?

  1. [51]
    The Applicant submits that the fact the objected documents might be categorised as commercial-in-confidence is not a sufficient reason to decline to produce these documents. The Applicant relies upon the decisions in Cassimatis and Westsand where confidential documents were ordered to be produced.[33]
  2. [52]
    The Applicant submits that consistent with the approach identified by Lee J in Lebon v Lake Placid Resort Pty Ltd[34]and Douglas J in Erglis v Buckley,[35] the Court should be sensitive to BMA’s interest in the documents by ensuring their relevance to the matters in issue, and if appropriate impose restrictions on the use of the documentation.
  3. [53]
    With respect to the Applicant, I do not believe I can properly assess and if necessary protect or order restrictions regarding the use of these documents, without hearing from BMA.
  4. [54]
    From the list of documents prepared by Crown Law, it appears only 4 documents are referred to as possibly attracting commercial-in-confidence objections[36].
  5. [55]
    These documents are:
  • Document 2.2 – Ministerial briefing note regarding a meeting between the Director, Resource Development and Ross Williams from BHP on 1 December 1998
  • Document 2.8 – Letter BHP to Director-General dated 3 November 2000
  • Document 2.14 – Letter BMA to Minister dated 5 August 2005
  • Document 2.15 – Ring binder submission to the Department of Mines and Energy from BMA dated 30 November 2007
  1. [56]
    The non-party disclosure in-confidence objection is found in r 245(4)(e). Under this rule I must determine if the documents or their contents are of a confidential nature, and then whether that confidential nature is sufficient to not require them to be disclosed to the Applicant or produced with restrictions as to use.
  2. [57]
    Commercial-in-confidence is a category of confidential information at common law. To ascertain if these documents meet this category, I will need to consider whether they contain commercially sensitive information in relation to processes, formulas and designs, customer lists, data, etc. I will also need to consider how the information was provided and whether there was an express or implied understanding that the information supplied was confidential. The mere fact a document is marked commercial-in-confidence does not necessarily make it so.
  3. [58]
    If I determine any documents or their content have a confidential nature, I will then need to determine whether the document should be provided to the Applicant.
  4. [59]
    I note the decision of Wilson J in Westsand where Her Honour allowed confidential information to be provided on the basis that the party seeking the information, would be subject to an implied undertaking not to use it except for the purposes of that litigation. While this implied undertaking is important with respect to any decision to release or not to release confidential information, it does not mean all confidential information ought to be produced. Why would the rules allow for an objection on confidential grounds if none could ever be forthcoming?
  5. [60]
    I note Jackson J’s comments in Cassimatis where he said that the confidential document exemption in the UCPR is discretionary and not an absolute bar to the production of confidential documents. This means that confidential documents can be produced but also equally his comments confirm that the confidential exemption exists to restrict or deny access.
  6. [61]
    To properly and fairly ascertain whether the confidential exemption should be applied to these documents or their contents I need to hear from BMA. It is unlikely DNRM would have the commercial knowledge to be able to adequately argue this point. I also note that in Cassimatis and Westsand the authors of the documents over which confidentiality was claimed were present to provide their view (Cassimatis), or at least were provided with that opportunity by service with a copy of the notice of non-party disclosure (Westsand).
  7. [62]
    In the interests of justice, I propose to issue orders requiring BMA to be provided with a copy of the Notice, the list of documents to which commercial-in-confidence exemption has been raised, relevant objections, written submissions and this decision. Further I require BMA to provide written submissions (only at this stage) as to whether it believes any of these particular documents should be objected to on the basis of the confidential nature of those documents or their contents.
  8. [63]
    If BMA wishes to submit that any of these particular documents or their contents are confidential and therefore should not be produced, then they would need to provide sufficient information in their written submissions to enable a determination of the confidential nature of the documents, and further why those documents or their contents should not be provided to the applicant or provided with restrictions on use, for the purpose of non-party disclosure.
  9. [64]
    I will also require a copy of the relevant documents to fully consider any submissions from BMA, if in fact they choose to object to production of any documents on confidentiality grounds.
  10. [65]
    I do not need BMA to make submissions as to objections on any other grounds than the confidential nature of these documents, as it is unnecessary. I am mindful that DNRM can make adequate submissions regarding their objections to the production of its own documents. I also note the concern expressed by Mackenzie J in CSR Ltd v Casaron that allowing a party to argue generally regarding a non-party’s objection to a notice of non-party disclosure must be confined to avoid it being a ploy in the litigation.
  11. [66]
    I also note other objection hearings such as Erglis v Buckley and Creswick where non-confidential exemptions such as relevance and privilege were fully argued without the presence or input of the other party.
  12. [67]
    I believe that DNRM should provide copies of the relevant material to BMA as this is not a matter requiring formal service as such. It is DNRM who have raised the issue of confidentiality as an exemption that BMA should be provided with an opportunity to raise and explain. Really this issue could have easily been resolved if DNRM had advised BMA initially as to what was happening and sought their advice as to whether the four documents were in fact confidential and whether they wished to raise a confidentiality objection over them or not. If BMA wished to raise a confidentiality objection they could have given notice of this to the Applicant and DNRM, and then sought the court’s leave to object on that basis at the 30 October 2015 hearing, pursuant to r 245(2).
  13. [68]
    These orders are made in accordance with Rule 367 UCPR.
  14. [69]
    The court will relist the objection hearing on 9 February 2016, once it has considered BMA’s written submissions and any documents provided to the court by DNRM. At the hearing of the objections, if required, the court will determine whether BMA should be granted leave to be further heard on any objection they may have to the production of these particular documents on the basis of their confidential nature.

Orders

  1. That DNRM provide copies of the notice, the list of documents to which commercial in confidence objection is taken by DNRM, relevant objections, written submissions, this decision and these orders to the substantive defendants in this action (referred to collectively as BMA) by 4.00pm on 24 December 2015.
  1. BMA file and serve on the applicant and DNRM written submissions by 4.00pm on 22 January 2016.
  1. By 4.00pm on 29 January 2016 DNRM will provide copies to the Court of any documents BMA wishes to claim an objection of confidentiality over, with such documents being in sealed envelopes for the restricted use of the Court only and for no other purpose until further order of the Court.
  1. The substantive hearing of the non-party disclosure application is listed for hearing at 10.00am on 9 February 2016.
  1. BMA may attend at the substantive hearing of the non-party disclosure application and seek leave to be heard at the substantive hearing on the issue of production of the commercial in confidence documents.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  Affidavit of Toby Boys filed 10 October 2014 at (2).

[2]  At (3) and exhibit TMB-2.

[3]  Affidavit of Paula Freeleagus filed 30 October 2015 at (6) and exhibit PPF-02.

[4]  At (7).

[5]  At (10) and exhibit PPF-03.

[6]  At (12) and (13) and exhibit PPF-04.

[7]  Outline of submission of DNRM dated 30 October 2015.

[8]  At (18v) and (23) respectively.

[9]  Outline of Submissions of DNRM filed 6 November 205 at (5).

[10]  (2013) QSC 237.

[11]  (2007) QSC 400.

[12]  Applicant’s Further Written Submissions filed 13 November 2015 at (6-9).

[13]  At (13).

[14]  (2001) QDC 197 at (3).

[15]  Applicant’s Further Written Submissions filed 13 November 2015 at (29).

[16]  (2001) QdR 261.

[17]  At (10).

[18]  At (20).

[19]  At (10) and (11).

[20]  At (23).

[21]  At (20 and 21).

[22]  At pages 3, 4 and 5.

[23]  At page 5.

[24]  (2003) QSC 126.

[25]  At page 6.

[26]  (1999) QSC 337.

[27]  At (14).

[28]  Also note McGill DCJ in Pickering v McArthur (No 2) (2010) QDC 90 at (12) where he said:

With regard to copies of notices of non-party disclosure, there is nothing in Part 2 Chapter 7, rules relating to non-party disclosure, that requires a copy of the notice to be served on the other party to the proceedings – Rule 244(1)(a) excludes a party from the scope of application of that provision.

[29]  (2009) QSC 219.

[30]  (2004) QSC 380.

[31]  (2009) 1 Qd R 1.

[32]  (2004) QSC 143.

[33]  Applicant’s Submissions filed 30 October 2015 at (21).

[34]  (1995) 1 Qd R 24 at page 29.

[35]  At (24).

[36]  Crown Law letter to Holding Redlich dated 6 March 2015.

Close

Editorial Notes

  • Published Case Name:

    Re Cherwell Creek Coal Pty Ltd, ex parte Chief Executive, Department of Natural Resources and Mines

  • Shortened Case Name:

    Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd

  • MNC:

    [2015] QLC 52

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    17 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cassimatis v Axis Specialty Europe Ltd [2013] QSC 237
2 citations
Jump To
Cite 1 - [2013] QSC 237
Cite 2 - [2013] QSC 237
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 509
Chenoweth v ING Australia Limited [2004] QSC 143
2 citations
Jump To
Cite 1 - [2004] QSC 143
Cite 2 - [2004] QSC 143
Creswick v Creswick [2009] QSC 219
2 citations
Jump To
Cite 1 - [2009] QSC 219
Cite 2 - [2009] QSC 219
CSR Limited v Casaron Pty Ltd [2003] QSC 126
2 citations
Jump To
Cite 1 - [2003] QSC 126
Cite 2 - [2003] QSC 126
Curry v Byrne [2007] QSC 400
2 citations
Jump To
Cite 1 - [2007] QSC 400
Cite 2 - [2007] QSC 400
Deppro Pty Ltd v Hannah[2009] 1 Qd R 1; [2008] QSC 193
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 1
Cite 2 - [2009] 1 Qd R 1
Erglis v Buckley [2004] QSC 380
3 citations
Jump To
Cite 1 - [2004] QSC 380
Cite 2 - [2004] QSC 380
Cite 3 - [2004] QSC 380
Lebon v Lake Placid Resort Pty Ltd[1995] 1 Qd R 24; [1993] QSC 421
2 citations
Jump To
Cite 1 - [1995] 1 Qd R 24
Cite 2 - [1995] 1 Qd R 24
Pickering v McArthur (No 2) [2010] QDC 90
1 citation
Jump To
Cite 1 - [2010] QDC 90
Pty Ltd v Western Metals Resources Limited (2001) Qd R 261
7 citations
Jump To
Cite 1 - (2001) Qd R 261
Cite 2 - (2001) Qd R 261
Cite 3 - (2001) Qd R 261
Cite 4 - (2001) Qd R 261
Cite 5 - (2001) Qd R 261
Cite 6 - (2001) Qd R 261
Cite 7 - (2001) Qd R 261
Smith v O'Leary [2001] QDC 197
2 citations
Jump To
Cite 1 - [2001] QDC 197
Cite 2 - [2001] QDC 197
Westsand Pty Ltd v Trevor William Johnson [1999] QSC 337
3 citations
Jump To
Cite 1 - [1999] QSC 337
Cite 2 - [1999] QSC 337
Cite 3 - [1999] QSC 337

Cases Citing

Case NameFull CitationFrequency
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd [2016] QLC 594 citations
1

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