Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 2)
[2025] QLC 16
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- Unreported Judgment
- Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 2)[2025] QLC 16
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Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 2)[2025] QLC 16
Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 2)[2025] QLC 16
LAND COURT OF QUEENSLAND
CITATION: | Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc & Ors (No 2) [2025] QLC 16 |
PARTIES: | Whitehaven WS Pty Ltd (applicant) v Australian Conservation Foundation Inc, Mackay Conservation Group Inc (active objectors) and Chief Executive, Department of Environment, Tourism Science and Innovation (statutory party) |
FILE NO: | MRA080-24 |
PROCEEDING: | Hearing of a General Application |
DELIVERED ON: | 17 July 2025 |
DELIVERED AT: | On the papers |
HEARD ON: | 15 July 2025 |
HEARD AT: | Brisbane |
MEMBER: | N.D. Loos |
ORDER: | The General Application filed by the active objectors on 1 July 2025 is dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS AND STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DISCLOSURE – where the Court was asked to make an order for disclosure against a non-party – where the general application seeking Sabre orders was made 14 business days before the substantive hearing – where the respondent to the application raised issues of lateness, non-party preclusion, confidentiality, and futility – where the applicant argued the material was legitimate, forensic, relevant and useful – whether the factors weigh in favour of making the orders – application dismissed Land Court Rules 2022, rr 4, 13, 14 BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186, considered Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 16) [2018] QLC 40, considered Maller v Australian Pacific LNG CSG Transmissions Pty Ltd [2022] QLC 12, cited McGoldrick v Sports TG Pty Ltd [2019] NSWSC 1154, cited Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123, cited Sabre Corporation Pty Ltd v Russ Kalvins Haircare (1993) 46 FCR 428, cited Tri-Star Petroleum Company v Australia Pacific LNG Pty Ltd [2017] QSC 136, cited |
APPEARANCES: | S Holt KC, J O'Connor and J Underwood (instructed by MinterEllison) for the applicant E Nekvapil SC, K McAuliffe-Lake and G Kiss (instructed by Environmental Defenders Office) for the active objectors A Hellewell (instructed by the Department of the Environment, Tourism, Science and Innovation) for the statutory party |
The disagreement
- [1]The parties disagree about disclosure.
- [2]The active objectors seek orders that Whitehaven disclose documents.
- [3]Whitehaven opposes that.
- [4]There were initially 13 categories of documents sought. Whitehaven provided some documents or explained that some do not exist.
- [5]That has resolved all but four of the 13 categories.
- [6]The four remaining categories of documents are:
- each Group Risk report or profile for 2024 and 2025.
- each report or other document about climate-related risk (including, but not limited to, constituent risks relating to operations, policy, reputation and strategy) prepared in 2023, 2024 or 2025 for any one or more of: (a) the Board; (b) the Audit and Risk Committee; (c) the Executive Leadership Team; (d) the Climate Change Working Group.
- (to the extent not covered by b) any document(s) prepared in 2023, 2024 or 2025 containing climate-related scenario analysis, as referred to on p 12 (including, but not limited to, any document(s) prepared by the subcommittee of the Climate Change Working Group, chaired by the CFO, that coordinated work related to WHC’s climate-related scenario analysis).
- any WHC climate change risk assessment prepared in 2023, 2024 or 2025.
- [7]The applicant in the main the case is Whitehaven WS Pty Ltd (“WWS”). The documents now sought are held by a different entity – Whitehaven Coal Ltd (“WHC”). The two entities are related.
- [8]The hearing is listed to begin on 21 July 2025.
The rules
- [9]Rules 13 and 14 of the Land Court Rules 2022 (“the Rules”) provide:
13 Disclosure must be for main purpose
A party must not apply for an order for disclosure unless the making of the order is in accordance with the main purposes of these rules.
14 Disclosure
- A party may apply to the court for an order for disclosure by another party to the proceeding.
- The application must state the proposed scope of the disclosure.
- If the court makes an order for disclosure by a party, the party must disclose documents in accordance with the order.
- Nothing in this rule prevents the parties to a proceeding agreeing at any time to disclose documents to each other by consent.
- [10]Rule 4 provides:
4 Main purposes of rules
The main purposes of these rules are—
- to ensure that when the court performs a function under an Act, including applying these rules, the court—
- facilitates the just and quick resolution of the issues in a proceeding; and
- avoids undue delay, expense and technicality in a proceeding; and
- to ensure that a party to a proceeding undertakes to the court and to each other party to the proceeding to—
- participate in the proceeding in an expeditious way; and
- comply with these rules and any order or direction made by the court in relation to the proceeding.
The competing positions
- [11]The active objectors submit that the documents:
- are relevant and for a legitimate forensic purpose;
- ought to be disclosed so that the Court can act on the best and most current information available;
- are needed to enable a proper cross-examination of WWS’s lay witnesses.
- [12]WWS submits that there are two insurmountable hurdles to the application, being:
- the Rules tell against making an order for disclosure against a non-party (and this Court would be “very, very slow” to deviate from the Rules); and
- the lateness of the request for disclosure and resultant application – viewed particularly in the context of the Rules requiring just and quick resolution and expedition.
- [13]WWS relies on the affidavit of Mr Shute, a solicitor. He deposes to the context in which this application is made (late) and the difficulty he says would be involved in making the four categories of documents available within a short timeframe.
The non-party issue
- [14]The active objectors say there is precedent for this Court making orders requiring a party to obtain documents from a non-party. They cite Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 16)[1]. There, the Court made a ‘Sabre’ order[2], which requires a party to take reasonable steps to obtain documents and file an affidavit detailing its efforts and results. The power “may be exercised where there is a real likelihood that the party to the proceeding against whom the order is made would be given access to the documents by the third party upon request”[3].
- [15]
- [16]
- [17]WWS says that the Rules preclude making an order against a non-party. It cites Rule 14(1). That submission does not grapple with the decision in Maller v Australian Pacific LNG CSG Transmissions Pty Ltd[6]. The question there was whether the Court’s leave was required to seek third party disclosure, because of the “restricted nature” of Rules 13 and 14. The Court concluded that leave was not required.
- [18]With respect, I agree with paragraphs [12], [13] and [14] of Maller.
- [19]Rule 14(1) does not exclude the possibility of an application for non-party disclosure.
- [20]WWS’s submission that Rule 14 tells against the orders sought here is doubtful on a second basis. That is, a Sabre order is not strictly an order against an entity which is not a party to the proceeding. What is sought is an order against WWS. The effect of the order against WWS would be to require it to make efforts to obtain documents from WHC.
- [21]Separately, there is something incongruous about WWS saying that it should not be ordered to obtain documents from WHC when:
- WWS is going to call employees of WHC to give evidence in the case to support the position of WWS; and
- WWS has been able, in a relatively short timeframe, to pull together the information in the Shute affidavit about how many pages of documents are involved and how much would be involved for WHC to make those documents ready. Cooperation between WWS and WHC is obviously possible.
- [22]All of that said, this is not an appropriate circumstance for a Sabre order. There has been ample time for the active objectors to seek the documents from WWS, or directly from WHC some other way. There is ambiguity about whether the ordinary process of third party discovery or subpoenas has been used or could have been used to obtain the four categories of documents.
- [23]Sabre orders are intended to be exceptional. Exceptional circumstances do not exist here.
The challenge of making the documents ready
- [24]Mr Shute’s affidavit[7] indicates that a large volume of material would have to be reviewed to determine what is disclosable. That would involve reviewing for confidentiality obligations and client legal privilege. In some instances, members of the WHC Executive Leadership team would have to sign off on what needs to be redacted from the documents.
- [25]The active objectors do not contest Mr Shute’s affidavit. They did not require him for cross-examination.
- [26]With respect to Mr Shute, he describes steps that, perhaps, make the task sound more onerous than it actually would be. WWS accept that some of the tasks which are said to require the input or approval of multiple people across the WHC Executive Leadership team may be able to be coordinated by a single person. There are ways in which the process could be streamlined.
- [27]That said, the task would be onerous and the challenges are made more acute by the hearing being set to begin in only a few days. To make the order sought would inevitably divert resources dedicated to hearing preparation.
The lateness
- [28]The request for the documents stems from WHC’s 2024 Sustainability Report, which was first filed on 10 July 2025 as an annexure to the lay witness statement of Mark Stevens. The four categories of documents arise from matters referred to in that report.
- [29]WWS points out that the active objectors were provided a copy of the report from as early as 5 December 2024, and that it was publicly available on the Internet on 25 September 2024.[8]
- [30]It was open to the active objectors to request the documents months ago. If the active objectors postponed seeking documents so that they could make a more refined and considered request, that postponement waited a little too long.
- [31]WWS says that lateness is, in effect, a reason to dismiss the application. When asked for the authority that supports dismissing an application for disclosure on the basis that it was made too late, WWS points to the Rules.
- [32]This case has been carefully case managed. It has been subject to Court Managed Expert Evidence under the control of an experienced CMEE Convenor. That is important context when considering whether this application could have been made earlier.
The role the documents would play
- [33]The active objectors argue forcefully for the disclosure. Despite their best efforts, it is not clear how essential the documents are to the issues in the case.
- [34]The active objectors say the documents are relevant to whether Whitehaven (whether that is WWS or WHC is not clear) considers the economic future of coal to be positive, or whether it might suspect otherwise. The economic future of coal is the subject of expert evidence in the case. The active objectors will be able to explore that topic through that expert evidence.
- [35]To the extent that it is relevant to explore what Whitehaven knows and what it expects for the future, the active objectors have some documents on those topics already. If they cross-examine WWS’s lay witnesses about it and those witnesses are unable to answer questions, that may be a matter for submissions as to the weight to be given to that evidence.
The result
- [36]Overall, it is not appropriate to make an order requiring disclosure of the four categories of documents because:
- the circumstances do not warrant a Sabre order;
- the challenge of making the documents ready would be a burden for WWS, particularly at this stage of the litigation within what has been a carefully case managed process; and
- the four categories of documents are likely in excess of what is required for the litigation and that ambiguity rests with the applicant for disclosure.
- [37]The Court is conscious of the active objectors’ concern that the case might not be argued on the best and most current information available. That will be something that the active objectors may choose to explore with WWS’s lay witnesses, or something that is presented by the expert witnesses in any case.
- [38]The Court must balance that concern with the purpose of the Rules – to facilitate the just and quick resolution of the issues in a proceeding, and avoid undue delay, expense and technicality.
- [39]The General Application filed by the active objectors on 1 July 2025 is dismissed.
Footnotes
[1] [2018] QLC 40.
[2] Sabre Corporation Pty Ltd v Russ Kalvins Haircare (1993) 46 FCR 428.
[3] Sabre at 432.
[4] Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123 at [124]. See also BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186 at [54].
[5] [2020] QSC 186.
[6] [2022] QLC 12.
[7] Affidavit of Andrew Shute filed 14 July 2025 at [23]-[29].