PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION
OF DOCUMENTS
– PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS –
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTIONOF DOCUMENTS– PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS –DOCUMENTS IN POSSESSION OF NON-PARTY– where the plaintiffs filed andserved a first notice of non-party disclosure on the respondent – wherethe respondentobjected to the first notice of non-party disclosure –where the plaintiffs then served a second notice of non-party disclosureon therespondent– where the respondent also objected to the second notice ofnon-party disclosure – where the effectof the objection is to stay thenotice – where the plaintiffs have brought an application to lift the stayand for the respondentto produce the documents specified in categories 1-13 ofthe schedule to the second notice – where only categories 4,7 and12remained contested at the hearing of the application – whether the stay on
the second notice of non-party disclosure should
be lifted and the non-party
should provide the plaintiffs the documents in categories 4,7 and 12
Uniform Civil Procedure Rules 1999 r 211, r 242, r 245, r 246, r
247, r 249
Cassimatis & Anor v Axis Specialty Europe Ltd [2013]
QSC 237, cited
Commissioner for Railways v Small [1938] NSWStRp 29
[1] On 13 April 2022 the plaintiff, Adani Mining Pty Ltd, filed and served a notice of non-party disclosure directed to the respondent, Downer EDI Limited. Downer's solicitors wrote objecting to the notice pursuant to rule 245 of the Uniform Civil Procedure Rules 1999 (UCPR). The objections were on the grounds of the expense and inconvenience in responding to the notice, the lack of particularity, the lack of relevance and also because of claims of privilege and confidentiality.
[2] By operation of UCPR rule 246, the objection stayed the notice. The lawyers for Adani and Downer then negotiated. Downer produced some documents to Adani in September 2022 and some further documents were produced in June 2023.
[3] Adani's lawyers were then 'sidetracked' because in the principal proceeding the defendant, Mr Pennings, applied to strike out Adani's statement of claim. That application was heard by Brown J in January and February 2024. A decision was made in December 2024. Her Honour struck out parts of the statement of claim, including paragraphs that referred to Downer. Leave was granted to re-plead.
[4] On 6 May 2025, more than three years after the first notice of non-party disclosure, Adani served a second notice of non-party disclosure on Downer. Again, through its solicitors, Downer objected. Downer's grounds of objection were similar to its grounds of objection to the first notice of non-party disclosure.
[5] Again, the effect of the objection was to stay the notice. Adani was then entitled to apply for the court to make a decision about the objection.
[6] On 23 May 2025, Adani brought its application under the UCPR rule 247 for orders that:
[2]
(a) the stay of the second Downer notice of non-party disclosure be lifted;
(b) Downer produce the documents specified in categories 1 to 13 of the schedule to the second Downer notice of non-party disclosure within 14 days.
[3]
[7] By the time of the hearing the only categories of documents sought by Adani from Downer were as follows:[1]
[4]
All Documents (including internal correspondence, draft statements, announcements or media releases) discussing the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
[5]
Category 4 is directly relevant to paragraph 75 of the 3FASOC as to why Downer ceased negotiations with Adani Mining. Mr Pennings at paragraphs 75(i) and (j) of the further amended defence (summarised at paragraph 11 above) relies upon the ASX announcement to deny that Downer ceased negotiations with Adani Mining due to the threats. The process for how the ASX announcement was made is directly relevant.
[6]
All letters or emails from the Galilee Blockade or Pennings.
[7]
Category 7 is directly relevant to paragraph 67 of the 3FASOC (that Downer knew about each of the threats) which is summarised at paragraph 8(c) above.
[8]
(a) recording what was to be discussed at the Downer Meeting;
(b) recording when the Downer Meeting took place including calendar entries or diary records;
(c) recording what was discussed at the Downer Meeting.
[9]
Category 12 is directly relevant to paragraphs 73 and 74 of the 3FASOC wherein it is alleged that in or around November 2017, there was a meeting (Downer Meeting) between Downer and Adani Mining and at the meeting Downer terminated negotiations with Adani Mining.
[10]
[8] Those descriptions of the categories of documents sought by Adani impose a burden on Downer. Using category 4 as an example, Downer is required to search its documents to see if there are documents that discuss the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
[9] For reasons that will be explained, a non-party should not be required to shoulder such a burden.
[10] It is necessary to consider, in a little detail, the features of the second notice of non-party disclosure. Firstly, the notice identifies the allegations in Adani's proceedings against Mr Pennings by quoting extensively from Adani's statement of claim. The quotes are from paragraphs 37, 38, 40B, 60 to 77, and 98 to 103 of the statement of claim, running to just over 34 pages. The thrust of the paragraphs quoted are that Mr Pennings engaged in an electronic campaign as well as 'direct action' designed to persuade Downer not to contract with Adani. The allegations are that Mr Pennings' actions led to Downer resolving to terminate negotiations with Adani in late 2017.
[11] Secondly, the second notice of non-party disclosure contains a list of definitions. As might be expected, the concept of a 'document' is widely defined.
[12] Thirdly, the second notice of non-party disclosure lists the documents required of Downer. For example, category 1 requires production of:
[11]
"All [2017] Documents (including correspondence, board packs, agendas, reports and other relevant information) prepared for the purpose of a board meeting or subcommittee meeting which refer to or contain information about:
[12]
Pennings;
Adani Mining;
the Galilee Blockade;
protests;
threats of protests;
the Downer AGM;
the Downer Articles;
the Downer Direct Action;
the Downer Posts;
negotiations, including the status of negotiations, with Adani Mining; or
whether the nominated party should cease negotiations with Adani Mining and why."
[13]
[13] Category 1 is one of a number of categories that have been resolved as between Adani and Downer. The three categories still requiring a court decision are explained above. However, category 1 is useful because it illustrates the approach by Adani in drafting the second notice of non-party disclosure.
[14] Fourth, the second notice of non-party disclosure sets out the notices to Downer required by the relevant form.[2] Those notices include a list of Downer's obligations and an explanation of its rights, including its right to object.
[15] The burden imposed by category 1 of the second notice of non-party disclosure is that it requires Downer to:
[14]
(a) digest the allegations made in nearly 35 pages of the statement of claim so that a proper assessment can be made of relevance; and
(b) search all of its documents produced in the 2017 calendar year for documents that were both:
(i) prepared for the purpose of a board meeting or subcommittee meeting; and
(ii) refer to or contain information about the 11 topics that are listed in the bullet points;
(c) collate and produce those documents.
[15]
[16] If Downer has no objection, all of that is required to be done within 14 days.
[17] Before turning to the specific categories in issue in this case, it is necessary to explain the procedure of notices of non-party disclosure.
[16]
[18] It is something of a misnomer to describe the procedure requiring non-party disclosure as a 'disclosure' process.[3] The obligation imposed on the recipient of a notice requiring non-party disclosure can be contrasted with the disclosure duties of a party to a proceeding. The notice of non-party disclosure procedure enables a party to litigation to require a non-party to produce "a document" (or documents), provided that the document or documents are:
[17]
(a) directly relevant to an allegation in issue in the proceeding; and
(b) in the possession or under the control of the respondent/non-party; and
(c) a document or documents the respondent/non-party could be required to produce at the trial of the proceeding.[4]
[18]
[19] At the core of that process is the 'one-off' production of the document or documents described in the notice.[5] The process is similar to a subpoena for production,[6] which requires the identification of the documents sought with reasonable particularity.[7] To comply with the notice, all the non-party needs to do is produce the specified documents. And the regime is sensitive to the fact that the non-party is a stranger to the litigation. For that reason, the non-party is entitled to its reasonable costs and expenses of producing the document or documents.[8] Even if the non-party objects to production, the starting point is that each party bears their own costs of the application to determine the objection.[9]
[20] On the other hand, the duty of disclosure imposes on parties to litigation a continuing, positive duty to disclose to the other party each document that is directly relevant.[10] The essential features of that positive duty are that the disclosing party has a continuing obligation to assess what documents are "directly relevant to an allegation in issue", to properly describe those documents in a list of documents and to enable inspection or supply copies of any non-privileged documents that are requested.[11] The requirement that the parties to litigation assess and then disclose the directly relevant documents in the parties' possession or control, even if contrary to that disclosing party's interests, serves the administration of justice by requiring the relevant truth.[12] Parties who fail to disclose are subject to sanctions and a failure to properly disclose may adversely affect a party's credit. The lawyers for the parties have a paramount duty not to mislead the court or permit the court to be misled, a duty that extends to disclosure obligations.
[21] It follows from those contrasting requirements that the notice of non-party disclosure will be consistent with the rules if the true nature of the notice is to require the non-party to produce documents. But a stranger to the litigation can legitimately complain if served with a notice that imposes on that non-party an obligation to undertake a detailed assessment of what documents are, or might be, comprehended by the pleadings in the proceeding. Those burdens of assessment are to be borne by the parties, not by a stranger to the litigation.
[19]
Category 4: Documents Discussing the issue of an ASX Announcement etc.
[20]
[24] It is now necessary to consider each of the categories of documents required by Adani from Downer.
[25] Category 4 requires Downer to search its documents and to determine if any of those documents:
[21]
(a) discuss the issue of an ASX announcement, media release or statement; and
(b) concern Downer's decision in relation to the Carmichael Mine or Adani; and
(c) fall within the window from September to December 2017.
[22]
[26] It is true that the date range is relatively narrow. However, that does not mean that the search is necessarily narrowly confined. A public company like Downer is likely to have a wider range of documents. Some documents will be hard copies, and some will be electronic.[16] For hard copies, a manual process will be required to assess whether any documents answer the description. Electronic searches may be able to narrow the search but the total volume of emails that will need to be searched may exceed 1 million.[17] An initial search of Downer's records using the keywords 'Adani' and 'Carmichael' returned about 29,000 hits.[18] Analysing and assessing those hits will be a substantial undertaking.
[27] The real problem is that, rather than requiring Downer to produce a specific document or category of documents, the true nature of Adani's category 4 is to this effect: 'search your documents and tell me if you have documents that discuss this topic, and concern your decision, and fall within the specified date range'. The requirement that Downer carry out a process akin to traditional interparty disclosure is clear from the oral submission of Adani's counsel to this effect: "we're looking for documents that discuss the issue of an ASX announcement, media release, or statement concerning the decision of Downer in relation to...Carmichael Mine or Adani Mining".[19] That makes clear that Adani expects Downer to carry out the search and, in doing so, determine whether any documents possess the particular content that Adani is looking for.
[28] The nature of the request is akin to drag netting, and it requires the non-party to drag the net and sort the catch.
[29] For those reasons, category 4 is too broad and too burdensome. Rather than requiring Downer to produce a specific document or category of documents, the category compels Downer to search its documents for two types of specific content.
[23]
Category 7: Letters or Emails from the Galilee Blockade or Pennings
[24]
[30] Category 7 requires Downer to produce all letters or emails from the Galilee Blockade or Mr Pennings. Counsel for Adani described the need for these documents in this way:
[25]
"Here, we seek all letters or emails fromGalilee Blockade or Pennings. The issue here, again, is that in paragraph 67 of the statement of claim, your Honour sees that we plead some things about Downer's knowledge. In particular, that it knew about the protests comprising the Downer direct action, that it knew about each of the posts that are pleaded in 60 and 61 - and as to that, that's social media posts and internet posts and the like. I don't need to take your Honour for that - for present purposes. Knew about the event that occurred at the Downer AGM and the other statements that are referred to in the particulars, and then we'd say that that knowledge can be inferred from a variety of things that we then make reference to.
[26]
The reason, in our submission, it's important to have letters or emails from Galilee Blockade or Pennings is twofold. One, the nature of the Downer direct action and the nature of the tort that's pleaded against Pennings is pleaded by reference to the activities of Galilee Blockade, and so, in our respectful submission, it's necessary for us to be able to demonstrate by reference to the documents that Downer has, to what extent it had received correspondence that may well not necessarily have come from Pennings alone but from other people who were acting under the aegis of Galilee Blockade. [emphasis added]"[20]
[27]
[31] The reference to "all letters and emailsfrom Galilee Blockade or Pennings" is limited to the calendar year 2017. Nevertheless, what Adani seeks are all letters and emails from Galilee Blockade or Pennings to Downer from 2017. Thus, as counsel for Downer pointed out, this category comprehends production of a letter sent to the mailroom of Downer, or to some public-relations representative, or to some low-level functionary, or even an executive who does not sit on the board or make relevant decisions.
[32] In short, the category is too wide. The category should be permitted but Downer's task should be confined. To achieve that, the following words need to be added: "to the board, board members or management of Downer".
[28]
[33] Category 12 requires Downer to produce all documents:
[29]
(a) recording what was to be discussed at the Downer meeting (in November 2017);
(b) recording when the Downer Meeting took place including calendar entries or diary records;
(c) recording what was discussed at the Downer meeting.
[30]
[34] Category 12 is confined to documents dated between September and December 2017.
[35] It can be seen that category 12(a) is prospective in that what is being sought are documents that record what was proposed to be discussed at the meeting. It is difficult to see just why a non-party should be required to search through its documents and assess whether those documents record what was proposed to be discussed. Topics that were proposed may never have been discussed and so may not be directly relevant to what happened at the meeting.
[36] Similarly, it is hard to see the relevance of category 12(b). The date of the Downer meeting can hardly be in issue, and it is difficult to see why a non-party should be required to search for documents that merely record the date of the meeting.
[37] Category 12(c) is rather vaguely expressed and requires Downer to search for documents that have any record of what was discussed at the meeting. That would presumably require Downer to trawl through a wide variety of documents, such as emails and memos, in order to assess whether those documents have content that discusses the Downer meeting. A document that merely discusses the Downer meeting in passing, and says nothing substantive about what happened at the meeting, would be comprehended by the category. More than that, what is required is a search for documents that might have discussed the Downer meeting and then an assessment of their content to see if the meeting was discussed. What is required is the equivalent of a trawling exercise and then an assessment of the catch. That is in circumstances where what is really relevant is what was decided at the meeting and why. There can be no particular burden in requiring Downer's representative to produce minutes or a memo which records what was discussed and decided at the meeting.
[38] Counsel for Downer argued that production of these documents should not be compelled because four people attended the meeting, including three people within Adani's 'camp'. The argument is that UCPR rule 242(2) applies because Adani already has instructions on what happened at the meeting, presumably from the three people within their camp who attended the meeting.
[31]
(a) the stay of the second Downer notice of non-party disclosure will be lifted so as to permit the notice to be amended in accordance with subparagraph (b);
(b) the second notice of non-party disclosure will be amended by deleting category 4 and amending categories 7 and 12 as indicated in these reasons.[21]
[32]
[1] Category 9 was initially contested at the hearing but subsequently fell away during the course of the hearing.
[33]
[3] At the least, it is a different disclosure process to inter partes disclosure.
[5] The obligation to respond to a notice of non-party disclosure is not an ongoing duty: UCPR rule 242(4).
[36]
[6] The process is limited to the production of documents which would be the subject of a subpoena duces tecum at a trial: UCPR rule 242(1)(c).
[37]
[7] See the line of cases commencing with Commissioner for Railways v Small[1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 573. See also cases like Spencer Motors Pty Ltd v LNC Industries Ltd[1982] 2 NSWLR 921 at 929-930 where the court considered whether a subpoena (or notice to produce) may properly require the production of documents that "relate to" a particular fact or subject matter.
[12]Flight v Robinson[1844] EngR 826; (1844) 8 Beav 22; 50 ER 9, Lord Langdale MR at 33, 34. The idea was "to scrape the conscience of the defendant": Lord Bowen , "Progress in the Administration of Justice during the Victorian Period" in Ward T H (ed), The Reign of Queen Victoria: A Survey of Fifty Years of Progress (Smith, Elder, 1877) Vol 1, 281 (cited in The Laws of Australia, Thomson Reuters at [5.3.230].
[22] The legislative regime for notices of non-party disclosure includes some protections for a non-party served with such a notice. The notice can only compel the production of specific documents which are directly relevant to an allegation in issue in the pleadings. Production of the document, or documents, cannot be compelled if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.[13] And the court will ensure that the applicant does not cast its net too widely.[14] Or, perhaps more accurately, the party issuing such a notice or subpoena cannot indulge in drag netting; the party is restricted to spear fishing.[15]
[23] The regime recognises that litigation is an expensive and time-consuming exercise for the community and for the parties, and that the extent to which strangers are put to inconvenience and expense by the litigation should be kept to a minimum.
[39] UCPR 242(2) provides that: "The applicant may not require production of a document if there is available to the applicant anotherreasonably simple and inexpensive way of proving the matter sought to be proved by the document." The evident objective of that subrule is to avoid a situation where the non-party is unnecessarily put to inconvenience and expense. For example, if the same document can be obtained from another litigant, then production will not be compelled.
[40] However, the subrule should not be interpreted as a blunt, inflexible instrument. The rule is designed to meet the situation where a fact A can be proved by requiring the non-party to produce a document or by another reasonably simple and inexpensive method. Thus, the rule contemplates that a fact A might be proved by either of two alternative methods. The method that does not place a burden on the stranger to the litigation is to be preferred.
[41] The situation here is a little different. It appears that four people attended the Downer meeting and Adani has access to the evidence of three of those attendees. But the minutes or a note or memo of what happened at the meeting prepared by the fourth attendee at the meeting, Downer's representative, is not in reality an alternative method of proving what happened at the meeting. The versions of all four attendees are likely to be different and probative. They are not shown to be mere alternatives. And, of course, Downer's motivations for ceasing the relationship are directly relevant. That makes the minutes, notes or memo of what happened at the meeting prepared by Downer's representative separately important and directly relevant.
[42] Of course, each situation will depend on its own facts. But the existence of other attendees does not necessarily mean that the evidence of the Downer representative is merely an alternative mode of proving what happened. Or, in the language of the subrule, the availability of evidence from other attendees has not been shown to qualify as another reasonably simple and inexpensive way of proving the matter sought to be proved by the contemporaneous documents of Downer's representative.
[43] In any event, for category 12 a narrower, more targeted description of the documents is appropriate, namely: "all minutes of the Downer meeting or other documents recording the decisions made or communicated at that meeting and the reasons for those decisions". That means that rather than searching through all related documents, Downer would be able to focus its search on the specific records of the meeting.