EweTec Pty Ltd v Whyalla Beef Pty Ltd [2025] FCA 842

1. Order 12 of the Orders dated 24 June 2025 be vacated.
2. The matter be listed for case management not before 13 August 2025, on a date to be advised administratively.
3. The parties have liberty to apply.
4. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The respondent to this proceeding, Whyalla Beef Pty Ltd, seeks orders for further discovery by the applicant, EweTec Pty Ltd, of documents said to be relevant to the case now sought to be pleaded following EweTec's amendments to its Concise Statement.
2. The total of 23 categories of further discovery sought by Whyalla may conveniently be divided into four groups (as things stood at the time of the filing of submissions by Whyalla on 4 July 2025):

(a) Agreed categories: the parties are agreed upon categories 9-14 and 16, and the parties therefore do not seek further orders in respect of those categories, discovery already being required pursuant to my orders of 24 June 2025.

(b) Categories where amendment proposed: in respect of categories 2-7, 19-21 and 23, EweTec has proposed alternative wording which it would be willing to accept.

(c) Disputed categories: categories 15, 17 and 18 are disputed.

(d) Categories no longer pressed: Whyalla no longer presses categories 1, 8 and 22.

1. With the exception of the agreed categories, these groups of discovery categories will be considered below ad seriatim.

1. This proceeding concerns a Forward Supply Agreement (the Agreement) between EweTec and Whyalla, pursuant to which EweTec was to provide an "Agistment Service" to Whyalla in respect of up to 1,500 wagyu cows which were supplied by Whyalla.
2. By orders made on 8 May 2025, EweTec was granted leave to amend its case to bring an allegation that, had it not entered the Agreement, it would have engaged in an "Alternative Commercial Activity" which, in the Second Further Amended Concise Statement at [12(b)], is stated to be as described in the affidavit of Mr Stuart Blake filed on 24 April 2025 (Second Stuart Affidavit). The Second Stuart Affidavit relevantly states at [10]-[13] that, had EweTec not entered into the Agreement, it "could and would have" in the period of in or about March 2020 to March 2024:

(a) purchased 1,200 cows for approximately $2.7 million, which it would have run on the Winterbourne Aggregation;

(b) sold those cows, and progeny produced by those cows, for approximately $11.9 million; and

(c) received approximately $8.2 million in net income greater than that which it received under the Agreement.

1. The Second Stuart Affidavit also relevantly states at [6] that EweTec's ability to carry out this Alternative Commercial Activity would have been assisted by loans and other resources provided by EA Blake & Sons Holdings Pty Ltd, a sister business of EweTec which also operates within the Blake family umbrella.
2. By its Further Amended Concise Statement in Response at [12(e)], Whyalla denies that EweTec would have engaged in the Alternative Commercial Activity in the absence of the Agreement.
3. On 24 June 2025, I ordered EweTec to provide additional discovery in respect of the Alternative Commercial Activity, save for those categories of discovery in respect of which EweTec notified Whyalla of its objection to. EweTec has objected to various requested categories principally upon the grounds that they are disproportionate and excessively broad. It is that process of consultation undertaken by the parties in accordance with my orders which has led to the present application and the compilation of a Supplementary Redfern Schedule (which is Annexure A to Whyalla's submissions).

1. Categories 2-7 sought by Whyalla each concern the scope of assistance that might have been provided by EA Blake to EweTec for the purpose of carrying out the Alternative Commercial Activity, and broadly refer to matters including agreements relating to the use of the Winterbourne Aggregation, the sharing of resources between EweTec and EA Blake, stock trading by EweTec and the lending of money to EweTec by EA Blake.
2. For each category, EweTec has suggested slightly amended wording to that originally proposed by Whyalla, and has also proposed a limited timeframe for which documents are to be discovered, namely limiting the relevant period to between March 2020 and March 2024 (which generally corresponds to the period during which the Agreement was in force, being 1 April 2020 to 1 April 2024). Whyalla accepts the amendments proposed by EweTec to the wording of each of categories 2-7, but does not agree that the relevant period for the documents to be discovered should be so confined.
3. Whyalla submits that whether or not EA Blake had a history of providing assistance to EweTec in respect of its operations in the years leading up to EweTec's entry into the Agreement in March 2020 is a matter relevant to determining whether EA Blake would in fact have provided the assistance which EweTec claims was necessary for it to have undertaken the Alternative Commercial Activity. It points to the Second Stuart Affidavit at [10(a)], which makes it plain that EweTec's case is that the Alternative Commercial Activity would have begun in March 2020. Accordingly, Whyalla says, what is primarily relevant is the likelihood that EA Blake would have been able and willing to provide assistance as at that date. Documents which evidence the practices or conduct of EA Blake in the lead up to that date are therefore, Whyalla submits, "plainly relevant to the likelihood of the Alternative Commercial Activity being undertaken in the manner alleged. Accordingly, confining discovery to documents relating to EA Blake's resources and support for EweTec commencing in March 2020 is not justified".
4. Consistently with that position, Whyalla contends that the appropriate period for discovery in respect of each of categories 2-7 is between 15 December 2016 (being the date which fell six years prior to the date on which EweTec commenced these proceedings, namely 15 December 2022) and 12 June 2025 (being the date on which Whyalla communicated its requests for additional discovery to EweTec).
5. EweTec takes issue with the period of discovery proposed by Whyalla on the basis that the request would extend significantly beyond the actual period of the Alternative Commercial Activity which is alleged (i.e. between March 2020 and March 2024), and therefore beyond the scope of my previous orders for further discovery arising from the corresponding amendments to EweTec's Concise Statement. EweTec submits that March 2020 - March 2024 is the proper relevant period not only because it is the period to which the Alternative Commercial Activity expressly relates, but also because that is the period during which EweTec was undertaking similar production and supply of cattle under the Agreement utilising its available resources. It contends that this is the appropriate comparator because that period evidences the actual use of resources that EweTec alleges it could and would have accessed in undertaking the Alternative Commercial Activity in the absence of the Agreement.
6. By contrast, EweTec says, the status of what resources it was able to access from EA Blake in the period before and after the term of the Agreement is "a period utterly estranged from the truly relevant period of examination". Its position is that discovery beyond the March 2020 - March 2024 period would produce evidence which would not be directly relevant to a fact in issue.
7. EweTec submits in the alternative that if any part of the lead up period preceding the Agreement is accepted to be relevant, only the preceding one-year period (commencing March 2019) should be allowed as potentially and reasonably providing evidence of the state of affairs immediately prior to the relevant period.
8. In my view, March 2024 is the latest point at which discovery could be expected to produce directly relevant evidence going to the allegations concerning the Alternative Commercial Activity and the likelihood that EweTec could in fact have carried it out. The appropriate starting point of the analysis is, however, not so easily demarcated. On balance, I am not persuaded that discovery should be confined strictly to between March 2020 and March 2024 as the period of the alleged Alternative Commercial Activity. I do, however, accept that discovery should be provided in respect of the financial year immediately preceding the commencement of the alleged Alternative Commercial Activity. I will therefore order that the period for which discovery should be made in respect of categories 2-7 is from 1 July 2018 to 31 March 2024.

1. Categories 19 and 21 concern certain financial information for EweTec and EA Blake, respectively. While the parties were in dispute as to the appropriate scope of discovery sought by categories 19 and 21 at the time that Whyalla filed its submissions, the parties subsequently reached agreement based on alternative wording proposed by EweTec. I will make orders for discovery in these categories adopting the agreed wording.

1. By category 20, Whyalla seeks the production of documents which evidence or record all operations of EA Blake between 2020 and 2024. EweTec has proposed amending the wording of this category in two ways:

(a) First, by restricting its scope to only those documents which relate to the operations of EA Blake "in the nature of the Alternative Commercial Activity"; and

(b) Secondly, by confining the relevant period to between March 2020 and March 2024.

1. Whyalla contends that the first amendment proposed by EweTec would render the category redundant, seemingly on the basis that the alleged Alternative Commercial Activity is entirely hypothetical and was not in fact engaged in by EweTec and EA Blake. The result, Whyalla submits, is that permitting the amendment would have the effect that no documents would be discoverable under this category. That submission is misconceived. As EweTec rightly identifies, the requirement that the documents relate to operations in the nature of the Alternative Commercial Activity, rather than solely the hypothetical Alternative Commercial Activity itself, would allow for discovery in respect of relevant operations, those being of the same or similar type as the Alternative Commercial Activity, and thereby provide evidence indicative of EA Blake's ability to conduct, and actual conduct of, operations of that type. That is plainly relevant to the allegations as to the ability to conduct the Alternative Commercial Activity. A more broadbrush enquiry into all aspects of EA Blake's operations would simply not be appropriate.
2. The proposed restriction of the relevant period is also opposed by Whyalla as being unnecessary, on the basis that there is little difference between its suggested timeframe (January 2020 to December 2024) and that suggested by EweTec (March 2020 to March 2024) such that it would not be oppressive to require discovery over that slightly longer period. Although I accept that there is little difference between the two timeframes, Whyalla has not proffered any logical reason for the extension of the timeframe which it proposes.
3. I will order discovery of category 20 in the form of the amendment proposed by EweTec.

1. By category 23, Whyalla seeks the production of documents which evidence or record the carrying capacity of the Winterbourne Aggregation, and the number of livestock actually carried on that land, from 1 April 2020 to 12 June 2025 (being the date of its request for further discovery). Much as for the previous categories, EweTec has proposed amending the wording of category 23 so as to confine the relevant period to between 1 April 2020 and 31 March 2024. The dispute in this case is therefore limited to whether documents which post-date the end of the Agreement on 1 April 2024 are relevant.
2. Whyalla submits that such documents are relevant because the issue of whether, after the Agreement ended, EweTec in fact maintained new livestock on the land in place of Whyalla's cattle is a fact which bears upon the likelihood of whether, had EweTec not entered into the Agreement, it would have attempted to source additional cattle to maintain a consistent number of livestock on the land. That is to say, Whyalla contends that, if EweTec did not engage in the Alternative Commercial Activity (or similar) after the Agreement came to an end, that is relevant to determining whether EweTec "would have" engaged in the Alternative Commercial Activity at the earlier point in time, had it not been constrained by the Agreement.
3. EweTec contends that Whyalla's position is misconceived and that the question of whether or not EweTec maintained a consistent number of livestock on the land subsequent to the term of the Agreement is "entirely devoid of relevance to the facts in issue", because the answer to that question does not go towards proving whether EweTec "would have" engaged in the Alternative Commercial Activity across the earlier period as alleged. EweTec accepts, of course, that the carrying capacity and number of livestock actually carried on the Winterbourne Aggregation during the term of the Agreement are matters relevant to the ability for the Alternative Commercial Activity to have instead been undertaken in that period.
4. I accept EweTec's position. Plainly, documents which concern the carrying capacity and number of livestock actually carried on the Winterbourne Aggregation post-dating the end of the Agreement would be irrelevant to the viability of the alleged Alternative Commercial Activity being undertaken in substitute for the activities actually performed pursuant to the Agreement between 1 April 2020 and 31 March 2024. Category 23 as confined by EweTec's proposed amendment will provide for a proper breadth of discovery of evidence directly relevant to that primary matter in issue. I will order discovery of category 23 in those terms.

1. While the parties were in dispute as to the discovery sought by category 15 at the time that Whyalla filed its submissions, EweTec no longer opposes discovery in this category. I will therefore order discovery of category 15 in the terms proposed by Whyalla.

1. By category 17, Whyalla seeks the production of all documents which evidence or record EweTec undertaking the Alternative Commercial Activity after the conclusion of the Agreement. EweTec objects to this category in its entirety as being irrelevant, on substantially the same basis as that for which it sought the confining of the relevant period for discovery under category 23.
2. Whyalla submits that whether EweTec in fact started to undertake the Alternative Commercial Activity (or similar) once it was no longer bound by the Agreement - that is, once the Agreement came to its end in March 2024 - is relevant to assessing whether it would have undertaken that same activity at an earlier time had it not entered into the Agreement. Further, Whyalla contends that the category is not oppressive in scope because, if EweTec did not in fact undertake the Alternative Commercial Activity (or similar) once freed from the constraints of the Agreement, then no additional documents would be discoverable.
3. In maintaining its objection, EweTec again points to the period over which it is alleged that it could and would have undertaken the Alternative Commercial Activity in substitute for the Agreement. It follows, EweTec says, that evidence as to whether it in fact conducted the Alternative Commercial Activity after having already completed the production and supply of cattle under the Agreement during that same period is completely irrelevant. That is said to be because the two scenarios entail "profoundly different circumstances": on the one hand, EweTec having devoted the time and resources to performing the Agreement; on the other, EweTec undertaking the Alternative Commercial Activity instead of performance under the Agreement (and thereby not having expended the same time and resources and not suffering the losses which are asserted to have resulted from Whyalla's conduct).
4. I accept EweTec's submission that this category ought to be rejected. While it is correct that the request by Whyalla is not necessarily oppressive in scope, it is clear that the scenario contemplated by category 17 is radically different from that which is to be tested in assessing whether EweTec would have undertaken the Alternative Commercial Activity had it not entered into the Agreement and, therefore, is irrelevant to the facts in issue.

1. By category 18, Whyalla seeks the production of all documents which evidence or record the number and ownership of the cattle being run on the Winterbourne Aggregation after the Agreement had come to an end. EweTec objects to this category as being irrelevant on the same basis as that agitated against category 17, namely that the position which it was in following performance of the Agreement is disparate to the position it would have been in had it not been obliged to perform the Agreement and instead had performed the Alternative Commercial Activity.
2. A slight distinguishing feature between the two categories is that Whyalla raises an alleged disparity between EweTec's case concerning the Alternative Commercial Activity and the terms of the Agreement. In particular, Whyalla identifies that, in the Second Stuart Affidavit at [16(a)], it is contended that if EweTec had not entered into the Agreement, it would have purchased 1,200 cows "with calves at foot" (making a total of 2,400 cows), whereas the Agreement provided for a maximum of 1,500 cows. EweTec argues that this submission ignores the fact that no more than 1,200 cows were in fact run under the Agreement (Second Stuart Affidavit at [16(a)]), and further says that the hypothetical cows having calves at foot on purchase is no different to each of the cows under the Agreement birthing calves and therefore having calves at foot. In this regard, I observe that, at [16(b)] of the Second Stuart Affidavit, EweTec claims that "the cows purchased in the Alternative Commercial Activity would come with calves at foot as opposed to the Wagyu cows supplied by the Respondent and used in production of the Sold Progeny which did not, thereby allowing for an additional drop of calves in the same period" (emphasis added). Nevertheless, EweTec submits that it is misleading to suggest that the alleged Alternative Commercial Activity would involve the purchase of double the number of cattle than that under the Agreement.
3. Notwithstanding this possible disparity, I am not convinced that category 18 is sufficiently different from category 17. This category is irrelevant and therefore ought to be rejected.

1. Categories 1 and 22 relate to the "Blake family businesses" which could have provided assistance to EweTec to undertake the Alternative Commercial Activity. EweTec's response to each category in the Supplementary Redfern Schedule indicated that there is no such business, other than EA Blake, such that the documents sought in these categories would be irrelevant. On that basis, Whyalla in its submissions no longer pressed categories 1 and 22, but reserved its rights in relation to those categories should EweTec contend at some later point that it would have been assisted in carrying out the Alternative Commercial Activity by an entity other than EA Blake.
2. EweTec in its responsive submissions identified that, while the entire expanse of Blake family businesses is not relevant, some other entities within the group do engage in business with and share resources with EA Blake and/or EweTec. In particular, EweTec states its position that the KA & HE Blake Rural Partnership (the Partnership Entity) would in fact provide to EweTec equipment and labour for the purposes of undertaking the Alternative Commercial Activity, and that entity has provided the same for the purposes of cattle production under the Agreement. EweTec therefore accepts that the financial position of the Partnership Entity, as distinct from the balance of the Blake family businesses, would be relevant and therefore such documents ought to be disclosed. Accordingly, EweTec submits that discovery in respect of category 22 ought to be made of "All financial statements for KA & HE Blake Rural Partnership (ABN 43 830 090 605) for the financial years 2020 to 2024 including any balance sheet, and profit and loss statements, and management accounts referable to those periods". I will order discovery of category 22 in those terms.
3. By contrast, EweTec maintains its objection to category 1, which would require the disclosure of any document ever produced by the "Blake family businesses" and the "Blake family primary production businesses" under the control of EweTec which disclose those entities' "identity and nature". EweTec objects to category 1 as being irrelevant, oppressive and a fishing expedition. I agree that this category is too broad and ought to be refused. Plainly, the documents responsive to category 22 will be sufficient for Whyalla's purposes in meeting the case put against it regarding EweTec receiving assistance from its sister companies (other than EA Blake) to undertake the Alternative Commercial Activity.

1. Category 8 requests disclosure of all documents which evidence or record the specific information provided by EA Blake referred to in the Second Stuart Affidavit at [9]. EweTec's response to this category in the Supplementary Redfern Schedule indicated that all relevant documents falling into this category were "expressly referred to, annexed, and thereby disclosed" in the Second Stuart Affidavit and, therefore, implied that any further documents responsive to this category do not exist. On that basis, Whyalla in its submissions no longer pressed category 8.
2. However, in its responsive submissions, EweTec disclosed that upon further searches it has obtained further documents which are responsive to category 8. EweTec has accordingly withdrawn its objection to this category and I will order it to provide discovery of same.

1. On 24 June 2025, I made orders in Chambers by consent at the request of the parties. By order 12 of those orders, the matter was to return for further case management in the week following my determination of these contested requests for discovery. Order 8 of those orders, however, requires EweTec to provide its further discovery in accordance with my determination within 14 days. The existing timetable therefore contemplates a further case management hearing occurring while EweTec is in the process of providing the further discovery.
2. Whyalla contends, and EweTec agrees, that it would be more efficient if the matter were listed for case management in the week which is 21 days after my determination, so as to permit EweTec sufficient time to complete the additional discovery prior to that review. I agree that this is the most sensible course and will make orders in the terms which were agreed between the parties in this respect.

1. I will make orders reflecting these reasons. I will also grant liberty to apply and will reserve the costs of this application.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.