Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda

(1) on the available evidence, are there reasonable grounds for being fairly certain that the Documents are in the control, or otherwise have been in the control, of Atlantic Nickel?

(2) if the answer to question (1) is "no", is it nevertheless appropriate that some order be made to effect the delivery up of the Documents to MSI?

1. There is no need to articulate any detailed background to this matter; much ink has been spilt upon it elsewhere: see, eg, Mining Standards (No 4) [3] - [16]; Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda [2022] FCA 623 [4] - [28] (Mining Standards (No 1)) and Mining Standards International Pty Ltd v Atlantic Nickel Mineracao Ltda (No 2) [2024] FCA 666 [7] - [98]. However, some salient facts are important and worthy of recitation.

1. Atlantic Nickel operates in the metals, mining and infrastructure sector. Its major asset is the Mine. Prior to 2018, all of its issued shares (the Quotas) were held by Mirabela Nickel Limited (MBN) and Mirabela Investments Pty Ltd (together, the Sellers).
2. In or about October 2015, receivers were appointed to the property of the Sellers. Thereafter, they undertook a sale process in respect of the Quotas, as well as MBN's rights, benefits and interests under, and in respect of, various loan agreements (together, the Assets). By November 2017, an agreement had been reached for the sale of the Assets to MSI (the MSI Agreement).
3. The MSI Agreement did not complete.
4. In or about 2018, an agreement was reached to sell the Assets to Appian Capital Advisory LLP on behalf of the Appian Natural Resources Fund (the Appian Agreement). It is convenient to refer to the purchasing entity as "Appian", notwithstanding that it is an oversimplified moniker.
5. From late 2020, Appian ran a sale process for Atlantic Nickel. In or about October 2021, it entered into an agreement (the Sibanye Agreement) which, in effect, involved the sale of the Quotas to the Sibanye Stillwater Group (Sibanye). Sibanye repudiated that agreement in early 2022: Butcher Decision [19], [327]. In reaching such conclusion, Butcher J offered a short description of the processes undertaken by Appian to sell the Quotas (at [10] - [11] and [134]):

Appian Capital's Sale of the Mines

[10] From late 2020 Appian Capital ran a sales process for Atlantic Nickel and MVV, which ultimately led to the SPAs with the Defendants.

[11] Appian Capital and its advisors contacted 106 potential buyers for Atlantic Nickel and 40 potential buyers for MVV. In total, 33 parties signed non-disclosure agreements which permitted them to access confidential information about the assets. One of those interested was Sibanye Stillwater. As part of its exploration of the possibility of buying the assets, there was an in person visit to the Mines by representatives of The Mineral Corporation ('TMC'), Sibanye Stillwater's technical advisers, in July 2021. By September 2021 there were two potential bidders still in contention, Sibanye Stillwater, and Global Battery Metals ('GBM'). Sibanye Stillwater's offer for both assets was of US$1,000 million in cash, plus a 5% net smelter return royalty on the Santa Rita Mine underground expansion.

...

Post-termination re-sale attempts

[134] The Claimants began a new sales process for the shares in the entities holding the Mines shortly after Sibanye Stillwater's termination of the SPAs. The sales process will, doubtless, be subject to more detailed examination in the trial of quantum, which has been hived off. In brief summary and on the material currently adduced:

(1) In September 2022, Appian Capital received all-cash offers from Zijin Mining Group and Rio Tinto. Zijin bid US$1,090 million for both Mines. Rio Tinto bid US$600 million for Atlantic Nickel alone. Shortly thereafter GBM made a series of bids for both Mines, culminating in May 2023 with a US$1,100 million offer.

(2) Appian did not proceed with Zijin, Rio Tinto or GBM. Instead, it pursued a deal with ACG Acquisition Co Ltd ('ACG'). A SPA with ACG was entered into on 12 June 2023 for both Mines for US$1,100 million. That did not proceed, but the Claimants and ACG negotiated revised terms, with a headline purchase price of US$1,000 million. The Claimants say, however, that ultimately they considered that this offer, taken as a whole, undervalued the assets. The Claimants therefore decided, on 28 September 2023, not to proceed with ACG but to seek a better deal with GBM. That did not, apparently, materialise.

(3) There have been some further bids, at least for MVV. Appian Capital has not, however, concluded a sale of either Mine to date.

The reference to "Claimants" in the above passage can, for present purposes, be understood to be a reference to Appian.

1. It is noted that Atlantic Nickel is party to each of the MSI, Appian and Sibanye Agreements.

1. The April Orders obliged Atlantic Nickel to, inter alia, "provide discovery of the categories of documents contained in ... Part 1 of Annexure F ... by no later than 11 June 2025". Part 1 of Annexure F relevantly identified the following documents:
   1. All documents comprising any offer or bid by Zijin Mining Group, referred to in paragraph 134(1) of the Butcher Decision.
   2. All documents comprising any offer or bid by Rio Tinto, referred to in paragraph 134(1) of the Butcher Decision.
   3. All documents comprising any offer or bid by GBM [Global Battery Metals], referred to in paragraph 134(1) of the Butcher Decision.

...

1. Documents recording the decision to not proceed with the SPA with ACG Acquisition Co Ltd, referred to in paragraph 134(2) of the Butcher Decision.

...

1. The offer from SBMB [Sibanye BM Brazil (Pty) Ltd] and/or SSL [Sibanye Stillwater Limited] referred to in paragraph 11 of the Butcher Decision.

(together, the Documents).

1. Self-evidently, the Documents correlate to evidence that was before the High Court of England and Wales in the Butcher Decision vis-à-vis offers received by Appian for the purchase of the Mine. To that end, it may reasonably be assumed that the Documents are in Appian's control.
2. In the written outline of submissions prepared by Messrs Stewart KC and Jackson on behalf of MSI, it is said that such evidence is relevant to these proceedings because:
   1. ... MSI claims as damages, the value of the opportunity to complete the MSI Agreement. Atlantic Nickel disputes the value of that opportunity and:

(a) whether MSI had the expertise or resources to meet the costs of operations during any period sufficient to enable it to sell the Assets other than at a loss;

(b) whether companies such as Appian, Sibanye Stillwater Limited and ACG Acquisition Company Limited were and would have remained interested in acquiring assets of the quality of the Santa Rita Mine.

1. The [Documents] are relevant to those issues. MSI requires the [Documents] to brief to its experts. They comprise offers to acquire the Quotas in Atlantic Nickel at issue in this proceeding. ...

1. It is, with respect, difficult to gainsay that submission. That said, at the time of the publication of these reasons, the Documents have not been discovered by Atlantic Nickel.

1. The relief sought by MSI on the Application was distilled by Mr Stewart KC and Mr Jackson in the following terms:

PART A: RELIEF PARAGRAPHS 1 - 3B

7. ... MSI seeks the following orders:

(a) by paragraph [1] - an extension of time to discover the [Documents];

(b) by paragraphs [2] and [3] - if Atlantic Nickel fails to give discovery of the [Documents], file and serve affidavits which depose to the facts by which Atlantic Nickel contends that the [Documents] are not in its control and failing that for Amended Defence [166] and [167] to be struck out;

(c) by paragraphs [3A] and [3B], if Atlantic Nickel establishes that it does not have control of the [Documents], a Sabre Corp order requiring it to seek the documents from its parent entities.

...

PART B - RELIEF PARAGRAPHS 4 AND 5 - SUBPOENAS

1. Alternatively, MSI seeks orders that subpoenas be issued to Fund II and Appian requiring each to produce the [Documents], by sending the Subpoena to representatives of [Atlantic Nickel's legal representatives], and Appian as well as delivering a copy to Appian Capital's registered office in London. Fund II is a party to [Butcher Decision] and was owner and Vendor of the Quotas in Atlantic Nickel in the Sibanye Agreement. Appian is its controller and/or ultimate holding company.

Alternative (1): Orders for particular discovery (per paragraphs [2] and [3])

1. Where a party gives discovery which is later said to be deficient, r 20.21 of the Federal Court Rules 2011 (Cth) (the Rules) is "commonly used as the basis of seeking discovery of particular documents": Frigger v Trenfield (No 2) [2019] FCA 2009 [20]; see also McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 [31] (albeit in the context of O 15, r 8 of the Federal Court Rules 1979 (Cth) (being the predecessor to r 20.21)). That rule relevantly provides:

(1) If a party (the first party) claims that a document or category of documents may be or may have been in another party's control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a) whether the document or any document of that category is or has been in the second party's control; and

(b) if the document or category of documents has been but is no longer in the second party's control -- when it was last in the second party's control and what became of it.

(2) The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

(for a brief recitation of the development of such provision, see, eg, Conor Medsystems, Inc v The University of British Columbia (No 3) [2006] FCA 121; (2006) 228 ALR 515, 515 - 516 [1] - [3]).

1. Though not expressly stated, paragraphs [2] and [3] of the Application prima facie comprise, by and large, an application for relief under r 20.21.
2. In Watson v Kriticos (Further Discovery and Adjournment) [2023] FCA 793, Perram J said (at [18] - [22]) that the standard to be applied on any such application "is whether there are reasonable grounds for being fairly certain that there are other relevant documents" (citing, inter alia, Procter v Kalivis [2009] FCA 1518; (2009) 263 ALR 461; see also Independent Cement & Lime Pty Ltd v Australian Cement Ltd [1988] FCA 749). It follows that the grant of relief sought in paragraphs [2] and [3] of the Application turns upon whether there are "reasonable grounds for being fairly certain" the Documents are, or have been, in the control of Atlantic Nickel.

Are the Documents in the "control", or have been in the "control", of Atlantic Nickel?

1. The term "control" is defined by Schedule 1 of the Rules to mean:

"control" , if referring to a document, means possession, custody or power.

1. As noted in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001; (2006) 155 FCR 1 (at 10 - 11 [53], quoting Simpson SD, Bailey DL and Evans EK, Discovery and Interrogatories (2nd ed, Butterworths, 1990) p 43):

The term "possession" means the physical or corporeal holding of the document pursuant to a legal right to its possession ... (for example, agents and bailees); "custody" means the mere actual physical or corporeal holding of a document, regardless of its right to possession, (for example, servants and employees) ... and "power" means an enforceable right to inspect the document or to obtain possession or control of it from the person who ordinarily has it in fact.

1. In an affidavit filed 8 August 2025 (the Quan-Sing Affidavit), Mr Jeremy Quan-Sing, a partner of Allens with carriage of the day-to-day conduct of the matter on behalf of Atlantic Nickel, explains that the Documents are not within his client's "control". Specifically, he deposes that:

(1) he has had oversight of the collection and review of Atlantic Nickel documents for the purpose of discovery in this proceeding;

(2) in respect of complying with the April Orders, the following process was adopted:

(a) Atlantic Nickel provided Allens with full account files for a number of email addresses for the period between 28 April 2018 and 1 April 2024, which, together with all documents previously collected from Atlantic Nickel for this proceeding, were then searched by Allens using keyword searches;

(b) documents identified through the keyword searches were reviewed by a member of the Allens team for relevance to the disclosure categories;

(c) Atlantic Nickel conducted searches of its hard copy records, network drives, mobile devices and laptops for specific documents responsive to the discovery orders made on 24 April 2025 and provided those documents to Allens; and,

(d) Allens reviewed those documents for relevance to the disclosure categories;

(3) no documents meeting the description of the Documents were identified;

(4) after Allens identified that no documents meeting the description of the Documents had been identified, it sought instructions from Atlantic Nickel and was informed that, due to the nature of the Documents, Atlantic Nickel would not have received them nor was it aware of any agreement that would confer upon it a right to obtain them from Appian.

1. MSI does not accept Mr Quan-Sing's conclusion. Instead, it submits, first, that the Quan-Sing Affidavit "does not establish that Atlantic Nickel never received any of the [Documents]; or indeed that it does not hold the [Documents]", and second, and in any event, there exist certain facts and circumstances, which, when viewed in light of the terms of the Sibanye Agreement, sufficiently raise the inference that the Documents are within the "power" of Atlantic Nickel.
2. With respect to the first submission, it is apt to recall that Atlantic Nickel was a party to the litigation in which the Documents were brought to light (Butcher Decision [11], [134]). It is, therefore, not fanciful to suggest that Atlantic Nickel might have received the Documents in the carriage of that litigation. That possibility, it is said by Mr Stewart KC, is only strengthened by Mr Quan-Sing's reluctance to respond to suggestions that Allens had "seen" the Documents or otherwise depose to the extent of Atlantic Nickel's dealings with the Documents, if any, in the course of the litigation before Butcher J. Whilst there may be some force in that submission, it does not provide reasonable grounds for being fairly certain that the Documents are, or have been, in the control of Atlantic Nickel. It must be borne in mind that Mr Quan-Sing is a solicitor entitled to practice. He can be taken to be acutely aware of the relevance and importance of the Documents to this matter, and the consequences that would follow should it be discovered that the Documents are, or have been, in the control of Atlantic Nickel. In those circumstances, it is appropriate to infer that Mr Quan-Sing has undertaken all necessary searches and enquiries, and the absence of the production of the Documents or any indication that they were previously in the control of Atlantic Nickel renders it unnecessary to entertain MSI's submission further.
3. With respect to the second submission, it is noted that the Sibanye Agreement is dated 26 October 2021. It was struck between BM Brazil 2 Fundo De Investimento Em Participacoes Multistrategie (Fund II) (as vendor), ANRH Cooperatief U.A. (ANRH) (as vendor guarantor), Sibanye BM Brazil (Pty) Ltd (as purchaser), Sibanye Stillwater Limited (as purchaser guarantor) and Atlantic Nickel (as subsidiary). In turn, it is noted that (a) Fund II and ANRH are controlled by Appian (such that Appian may be regarded as the vendor, and Sibanye as the purchaser); and (b) Fund II is the sole and exclusive owner of the shares representing 100% of the capital of Mirabela Participações S.A. which, in turn, is the sole and exclusive owner of the Quotas. The following provisions of that agreement were said to be important.
4. First, the definition of the expressions "Damages" and "MSI Claim" in Article 1:

...

"Damages" means any loss, damage, claim, settlement, award, fine, penalty, fee (including reasonable legal fees), charge, cost or expense actually incurred by an Indemnified Party; provided, however, that, except in the case of Third Party Claims, Damages shall not include lost profits, opportunity costs, damages based upon a multiple of earnings or similar financial re, or consequential, incidental, special, indirect, aggravated, exemplary or punitive damages.

...

"MSI Claim" means any actual or potential claim arising by virtue of allegations by MSI in connection with the purchase of the Subsidiary (formerly known as Mirabela Mineração do Brasil Ltda.) by the Vendor or any of its Affiliates.

1. Second, the indemnities granted by Appian and Sibanye in Articles 7.2 and 7.3:

7.2 Indemnity by the Vendor. The Vendor shall indemnify the Purchaser's Indemnified Parties and hold them fully harmless against, and will reimburse them for, any Damages arising from, or in connection with:

(a) any breach of any representation or warranty of the Vendor contained in this Agreement;

(b) any breach or any non-fulfilment of any covenant or agreement on the part of the Vendor contained in this Agreement; and

(c) any liability of the Subsidiary related to the MSI Claim, including properly incurred legal expenses.

7.3 Indemnity by the Purchaser. The Purchaser shall indemnify the Vendor's Indemnified Parties and save them fully harmless against, and will reimburse or compensate them for, any Damages arising from, or in connection with:

(a) any breach of any representation or warranty of any of the Purchaser contained in this Agreement; or

(b) any breach or non-fulfilment of any covenant or agreement on the part of the Purchaser contained in this Agreement.

1. Third, the delineation of the management of any MSI Claim in Article 7.21:

7.21 MSI Claim.

(1) If an MSI Claim is made against the Subsidiary, the Vendor and the Purchaser shall jointly have control of the Defence of the MSI Claim and the Subsidiary agrees that all decisions regarding the Defence to the MSI Claim will be made in accordance with this Section 7.21. The Vendor or the Purchaser (as the case may be) shall cause the Subsidiary to, and the Subsidiary shall, engage two firms of solicitors nominated respectively by the Vendor and the Purchaser to conduct the Defence (the "Joint Counsel"). The firm of solicitors formally on the court record for the Subsidiary in any proceeding relating to an MSI Claim shall be the firm nominated by the Purchaser. It is acknowledged and agreed that the nominees of the Vendor and the Purchaser as the Joint Counsel:

(i) may be firms who have acted for a party in relation to the matters the subject of any MSI Claim and/or this Agreement;

(ii) in representing the Subsidiary in the Defence of the MSI Claim, may have regard to the interests of the nominating party; and

(iii) may disclose any information regarding the Defence of the MSI Claim with their nominating party.

(2) The Vendor and the Purchaser shall agree the identity of the Senior Counsel or Queen's Counsel ("Senior Counsel") to be engaged by the Joint Counsel for the Defence of any MSI Claim. If the Vendor or the Purchaser are unable to agree, the Vendor shall provide a list of not fewer than 5 Senior Counsel (each having appropriate experience (including having been appointed Senior Counsel for not less than 8 years), and each of whom has confirmed that they are available to act and have no conflicts of interest), and the Purchaser shall elect which to engage within 10 Business Days.

(3) The Vendor, the Purchaser and the Subsidiary agree to (and to ensure that their Affiliates) work together, promptly share information and documents (to the extent reasonably required) and otherwise coordinate activities in order to seek to bring a speedy and cost-effective end to any MSI Claim. The Vendor, the Purchaser and the Subsidiary shall each ensure that its servants, agents and employees (and those of its Affiliates), and shall each procure that its former servants, agents and employees (and those of its Affiliates) do all things reasonably necessary for the Defence of any MSI Claim and that the Joint Counsel have access to all books and records of the party or its Affiliates reasonably required for the conduct of the Defence of any MSI Claim and that any requests for access and/or information are dealt with promptly and efficiently.

(4) The parties acknowledge and agree that they have a common interest in the subject matter of any MSI Claim and that any communications between any of them (including any disclosures pursuant to Section 7.21(1)(iii)) will be confidential and remain the subject of legal professional privilege and that any sharing or disclosure of communications between them is not intended to, and will not, waive any such privilege.

(5) The Vendor, the Purchaser and the Subsidiary, in consultation with the Joint Counsel, shall confer and seek to agree on strategic and tactical decisions including issues relating to jurisdiction, the defences and any counterclaims and third-party claims to be raised, selection and retention of witnesses, any interlocutory applications, conduct of discovery and hearings, and (subject to Section 7.21(6)) compromise or settlement of any proceeding relating to an MSI Claim.

(6) In relation to settlement, or negotiations regarding settlement, of any MSI Claim:

(i) if the proposed settlement would require the Vendor to make an indemnification payment (net of any proposed recovery by the Subsidiary from third parties under the contemplated settlement) in an amount which falls between the balance then remaining of the Aggregate Claim Threshold and the Indemnity Cap, the Subsidiary will not propose, or agree to, the settlement unless the Vendor has agreed in writing for the Subsidiary to do so (which agreement will not be unreasonably withheld or delayed); and

(ii) in any other case, the decision to settle will be made jointly by the Vendor and the Purchaser.

(7) If the Vendor and the Purchaser cannot agree on any decision to be made under Section 7.21(5) or Section 7.21(6)(ii), and remain unable to agree for 5 Business Days, or there is a dispute that the Vendor's agreement has been unreasonably withheld under Section 7.21(6)(i) which has not been resolved within 5 Business Days, the following procedure will apply:

(i) The parties, via the Joint Counsel, will request advice from Senior Counsel in relation to the deadlock and decision to be made or the dispute. For the avoidance of doubt, if the dispute concerns the withholding of agreement under Section 7.21(6)(i), the relevant opinion of Senior Counsel for the purposes of the procedure set out in this Section 7.21(7) will be limited to their opinion as to whether or not the withholding of agreement is unreasonable.

(ii) The parties will, and will instruct the Joint Counsel to, give all assistance required by Senior Counsel to facilitate the provision of such advice. The Senior Counsel will have absolute discretion in relation to the process by which the information about the deadlock and decision or dispute is to be obtained for the purposes of the advice and pursuant to which the advice is given. The parties will have no right to natural justice or procedural fairness.

(iii) Following receipt of the advice from the Senior Counsel the parties will, in good faith, seek to agree how to proceed based on the advice. Failing agreement within 3 Business Days, if the dispute concerns the withholding of Agreement under Section 7.21(6)(i) and the Senior Counsel's opinion is that the withholding of agreement has not been unreasonable then the Vendor's decision will stand and, in all other cases, the Senior Counsel will be instructed to decide how to best proceed.

(iv) Upon a decision being made under Section 7.21(7)(iii), the parties will do all things necessary to give effect to such decision, including instructing the Joint Counsel to give effect to the decision.

(v) Any decision made under this Section 7.21 will be deemed to have been made by the parties jointly.

(8) Subject to providing a Claim Notice pursuant to Section 7.5(2) in respect of any MSI Claim, the Purchaser is entitled to make a claim on the Escrow Account pursuant to Article 9 or on the Vendor Guarantor pursuant to Article 4 and in respect of any MSI Claim, the Purchaser shall have the right to be indemnified for the amount of all Damages pursuant to Section 7.2(c) and subject to the limitations set out in Article 7.

(9) Any obligation to pay for Damages arising from an MSI Claim pursuant to this Article 7 shall become due and enforceable and the corresponding Damages shall be reimbursed by the Indemnifying Party to the Indemnified Party within fifteen (15) Business Days after the Indemnifying Party is notified by the Indemnified Party of an actual disbursement made by the Indemnified Party as a result of such Damages being incurred provided that such notice shall contain a copy of any documents necessary to evidence such payment.

(10) The fees and expenses of the Joint Counsel shall be paid as follows:

(i) The Joint Counsel shall be instructed to invoice their fees and expenses to the Subsidiary, on a monthly basis, with a copy of each invoice to be delivered to the Vendor and the Purchaser.

(ii) Upon receipt of such an invoice, the Vendor will pay 50% of the amount of the invoice directly to the issuer of the invoice, in accordance with the terms for payment.

(iii) The balance of each invoice will be paid by the Subsidiary, but will be regarded as "Damages" for the purposes of the indemnification regime governed by the other provisions of Article 7.

1. And fourth, the identification of the consequences of termination in Article 10.2:

10.2 Effect of Termination. If this Agreement is terminated:

(a) by the Vendor or by the Purchaser under Section 10.1, subject to Section 10.2(b), all further obligations of the Parties under this Agreement shall terminate, except for the obligations under Sections 8.2, 11.1 and 11.2., which shall survive such termination; and

(b) by a Party under Section 10.1(b), 10.1(c) or 10.1(d) and the right to terminate arose because of a breach of this Agreement or the MVV Purchase and Sale Agreement by the other Party (including a breach by the other Party resulting in a condition failing to be satisfied), then, the other Party shall remain fully liable for any and all Damages sustained or incurred by the terminating Party as a result thereof in accordance with Article 7.

1. MSI also made reference to various "uncontroversial facts" which concerned, in particular, the legal representation of Appian, Sibanye and Atlantic Nickel. First, it was said that King & Wood Mallesons (KWM) "acted for Appian in its acquisition of the Assets". Second, it was noted that Allens is a close associate of Linklaters LLP, a law firm headquartered in London, who was said to have "a long history of acting for Sibanye". Third, and in light of the above, it was said that the fact that Atlantic Nickel is represented, for the purposes of the litigation in this Court, by Allens and KWM was "extraordinary" and tended to suggest that they "are acting as Joint Counsel [under art 7.21 of the Sibanye Agreement] and were nominated by [Sibanye] and [Appian], respectively". Fourth, it was said that Atlantic Nickel had failed to adduce any evidence to rebut such an inference. Fifth, and on the premise that art 7.21 was applicable and in force, it was said that the language of art 7.21(3) conferred an "explicit" and "present legal right" upon Atlantic Nickel to demand the Documents from Appian (see also art 7.21(5)).
2. MSI has, on numerous occasions, sought to ascertain the foundation for Atlantic Nickel being represented by two major firms of solicitors. It has put many assertions to them. The responses received have been, on any view, rather limited; they contain circumscribed denials and do not attempt to rationalise Atlantic Nickel's retention of KWM and Allens beyond asserting that neither firm had received instructions under art 7.21 of the Sibanye Agreement. In Mr Stewart KC's submission, such conduct could only be characterised as "evasive" and inconsistent with the obligations required of litigants by the Federal Court of Australia Act 1976 (Cth) (the Act).
3. It must be kept steadily in mind that the obligations of litigants and their solicitors in this Court under ss 37M and 37N of the Act must be understood in context. As one simple example, they do not oblige them to surrender any rights derived from legal professional privilege. In short, and as the subsequent discussion reveals, I am not persuaded that the impugned conduct rises to the threshold of constituting a breach of the Act in the manner alleged by MSI.
4. In any event, and even if art 7.21 of the Sibanye Agreement was, in fact, the foundation of the appointment of the dual representation of Atlantic Nickel, it is not readily apparent that that article confers a presently enforceable legal right upon Atlantic Nickel to obtain the Documents from Appian: recall supra [19]; see also Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 635; Taylor v Santos Ltd (1998) 71 SASR 434, 438. That is because, as made clear by art 10.2 of the Sibanye Agreement (see supra [27]), art 7.21 did not survive the termination of the agreement in the early months of 2022: Butcher Decision [19] - [20]: and cannot be said to be resuscitated, or otherwise sustained, by reason of that agreement's indemnification regime.
5. It is noted that art 7.2(c) of the Sibanye Agreement obliged Appian to indemnify Sibanye (but not vice-versa: art 7.3) in respect of "any liability" of Atlantic Nickel related to this proceeding, "including properly incurred legal expenses". That indemnity was limited to $60m (art 7.6(1)) and was seemingly said, by MSI, to (a) cover the fees and expenses of Allens and KWM in this proceeding; (b) survive termination; and, in the result, (c) support the operation of art 7.21 post-termination. The thrust of that submission is, with respect, difficult to follow. Article 10.2 explicitly identifies which articles of the Sibanye Agreement survive termination. In particular, sub-paragraph (b) provides, in effect, that Sibanye "shall remain fully liable for any and all Damages sustained or incurred" by Appian as a result of its repudiation "in accordance with Article 7". It is unclear how such provision engages any indemnity provided under art 7.2 nor does it explain how, even if the obligation to pay Damages continues following the termination of the agreement, the substantive obligations in art 7.21 (such as to "share information") do.
6. In sum, there is insufficient evidence to show that art 7.21 continues to operate - either pursuant to the Sibanye Agreement or in fact. In particular, there is no reason to believe that art 7.21(3) operates such that Atlantic Nickel has a present legal right to obtain the Documents from Apian.
7. In those circumstances, there is no basis for making an order under r 20.21 of the Rules for it cannot be said that there are reasonable grounds for being fairly certain that the Documents are within the "control" (and, specifically, "power") of Atlantic Nickel. Accordingly, there is also no rational basis for extending the time in which Atlantic Nickel is to discover the Documents.

1. This Court is not bound by the terms of the Rules and may, where appropriate, dispense with their compliance and make orders that are inconsistent with them: rr 1.34 - 1.35 of the Rules.
2. Read together, paragraphs [1] - [3] of the Application ostensibly rely upon such regime to the extent that they seek to strike out certain paragraphs of the Defence should Atlantic Nickel fail to make standard and particular discovery of the Documents. Such orders were also said to be derivative of the obligations of litigants in this Court to act in accordance with the "overarching purpose" defined by ss 37M and 37N of the Act.
3. I am not convinced that such a quasi-guillotine order is appropriate. Chiefly, that is because it is not clear the Documents are in the "control" of Atlantic Nickel and appropriately the subject of an order for discovery; to that, it is noted that no reason was advanced, nor is one readily apparent, as to why Atlantic Nickel should be compelled to undertake the ostensibly oppressive task of discovering documents that are not within its control (bearing in mind ss 37M - 37N of the Act). Furthermore, while it appears, at least prima facie, that Appian and, perhaps, Sibanye, have some degree of direct influence over the manner in which the litigation in this Court has progressed - though that is not certain - that fact, and their exercise of commercial power, does not explain why Atlantic Nickel should be, in effect, compelled to discover the Documents.
4. It follows that the first form of order sought by the applicants should not be granted.

Alternative (2): "Sabre Corporation" Orders (per paragraphs [3A] and [3B])

1. In Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co [1993] FCA 557; (1993) 46 FCR 428 (Sabre Corporation), Lockhart J explained (at 431 - 432) that:

In my opinion the Court has power to direct a party to take steps to obtain access to and discover documents which are in the possession, power or control of a third party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request. Section 23 of the Federal Court Act 1976 (Cth) confers ample power upon the Court to make orders of the kind sought in par (2) of the notice of motion, namely, an order that the applicant be required to request Joico to take steps to obtain access to and discover documents in the possession, power or control of Joico (the third basis relied on by the respondents and mentioned earlier). Section 23 provides:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

This 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. ...

(Emphasis added).

1. Such power has since been exercised many times: see, eg, Kraft Foods Group Brands LLC v Bega Cheese Ltd (No 4) [2018] FCA 1055 [18]; Vringo Infrastructure, Inc v ZTE (Australia) Pty Ltd (No 2) [2014] FCA 525 [44]; cf Australian Competition and Consumer Commission v Prysmian Carvi e Sistemi Energia SRL (No 8) [2014] FCA 376 [24]; see generally McGoldrick v SportsTG Pty Limited [2019] NSWSC 1154 [22] - [29]. In each instance, much has turned upon the likelihood that the relevant third party will comply with the request. For example, in Sabre Corporation, Lockhart J indicated that he would make an order requiring an Australian distributor of products that were manufactured by a United States corporation to request the manufacturer to provide it with certain documents where, on the facts then before his Honour, including a clause in a distributorship agreement, there was a "real likelihood" that the United States corporation would provide the documents to the Australian distributor.
2. On first blush, there are reasonable grounds for the making of an order of a similar nature in this case. As has been noted, there is no real doubt about the existence of the Documents, their relevance or their control by Appian. Indeed, the reasons given in the Butcher Decision tend to suggest that the documents were the subject of evidence in open court in the United Kingdom (or at least will be in the forthcoming hearing on quantum: see Butcher Decision [134]).
3. However, there is a real and not insignificant question as to the likelihood that Atlantic Nickel would be given access to the Documents if it were to make such a request of Appian. Of that, there is no real evidence. One might surmise that, were Appian and Atlantic Nickel at arm's length, no such issue would arise. However, given that the Documents are, prima facie, not of assistance to Atlantic Nickel's case in this Court (and will, thereby, cause some degree of harm to the interests of its controlling company, Appian, if disclosed), it is unlikely, at least upon an objective view, that any request for the Documents would be met favourably. To that, it might be added that, on the assumption Appian exerts some not insignificant degree of influence over the present proceeding, the rather pugilistic and combative manner in which such litigation has progressed to date tends to suggest that any request for the Documents will be soundly rejected.
4. In sum, any order of the nature made in Sabre Corporation would, in all likelihood, be inutile; the evidence presently before the Court does not establish there is a real likelihood that Atlantic Nickel would be given access to the Documents by Appian on request: see SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150, 157 [31], citing Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 [8], [17] - [19]. It would, therefore, be inappropriate to make the orders proposed by paragraphs [3A] - [3B] of the Application.

Alternative (3): Orders for the issuance of subpoenas (per paragraphs [4] and [5])

1. Paragraphs [4] - [5] of the Application comprise a request for leave to issue subpoenas against Fund II, being the "vendor" under the Sibanye Agreement, and Appian, being the controller of Fund II, that require such entities to produce the Documents.

Fund II and Appian appear to be foreign addressees

1. On the rather limited evidence before the Court, it appears that (a) Fund II is registered upon the Brazilian National Registry of Legal Entities (for the Sibanye Agreement records it as being "registered at the CPNJ [Cadastro Nacional da Pessoa Jurídica]"); and (b) Appian is a company registered in England under the Companies Act 2006 (UK) (the Companies Act).

The power to issue a subpoena upon a foreign addressee

1. The Court is empowered to issue a subpoena by rr 24.01 and 24.12 of the Rules:

(1) A subpoena may be issued only with the leave of the Court.

(2) A party may apply to the Court for leave to issue a subpoena without notice to any other party.

...

24.12 Issuing of subpoena

(1) The Court may, in any proceeding, by subpoena, order the addressee:

(a) to attend to give evidence as directed by the subpoena; or

(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or

(c) to do both of those things.

(2) An issuing officer must not issue a subpoena:

(a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena:

(i) not be issued; or

(ii) be issued only with the leave of the Court and that leave has not been given; or

(b) requiring the production of a document or thing in the custody of the Court or another court.

Note for paragraph (a) Division 24.1 deals with applications to the Court for leave to issue a subpoena.

(3) The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.

1. The service of such a writ "outside Australia" is governed, inter alia, by r 10.44 of the Rules:

10.44 Service of other documents outside Australia

Any document other than an originating application may be served outside Australia with the leave of the Court, which may be given with any directions that the Court considers appropriate.

1. In this context, and observed by McEvoy J in Georges (Liquidator), in the Matter of SIRA Pty Ltd (In Liquidation) [2022] FCA 768 (at [9]), there has traditionally existed:

... some reluctance to grant leave to issue or serve a subpoena or like process in another country on the basis that an order requiring a foreign national to do something in Australia on pain of punishment, in proceedings to which that foreign national has not submitted, is an infringement of the sovereignty of that other country which should not readily be allowed ...

(Citations omitted).

(see also In the matter of Sunnya Pty Ltd [2024] NSWSC 1107 [9]).

1. Such discourse was considered at length by Wigney J in Ceramic Fuel Cells Limited (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; (2016) 245 FCR 340 (Ceramic Fuel Cells). There, his Honour found (at 353 - 354 [55] - [57]):

[55] In relation to the specific rules under consideration in this matter, the questions posed earlier in relation to the proper construction of rr 24.01, 24.12 and 10.44 of the Federal Court Rules are to be answered in the negative. Those rules should not to be read down so as to exclude entirely the power to grant leave to issue and serve a subpoena on a foreign addressee. ... Rather, in exercising those powers in relation to a subpoena to a foreign addressee, the Court is required to have regard to whether the issue and service of the subpoena in the circumstances would contravene international law or international comity. It must also exercise caution and restraint. Exceptional circumstances are not always required, however the need for caution and restraint may mean that the Court would not ordinarily issue and grant leave to serve a subpoena that would involve a clear breach of international comity or international law, at least unless the circumstances of the case made it otherwise appropriate or necessary.

[56] It should also not simply be assumed that any subpoena issued to and served on a person in a foreign country will necessarily result in a breach of international law. There would appear to be no such universal rule. Nor should it be assumed that such a subpoena would necessarily raise issues of comity sufficient to prevent the issue or service of the subpoena. International comity is not a matter of absolute obligation and does not create an absolute bar to the issue and service of a subpoena in a foreign country. It cannot, for example, be assumed that every country will consider a subpoena served on one of its citizens or residents within its jurisdiction to be an invasion or affront to its sovereignty, whatever the circumstances of the subpoena may be. In Sweeney v Howard, for example, Windeyer J noted (at [11]) that information made available by the Attorney-General indicated that the government of the United Kingdom would not consider service in the United Kingdom of a subpoena issued out of a foreign court to be an interference with the governance of the United Kingdom or an interference in its sovereign affairs. And in Gloucester, White J noted (at [37], referring to Blackmer v United States [1932] USSC 23; 284 US 421 (1932)), that in some situations in some jurisdictions a subpoena may not be regarded as coercive, but rather as having the effect of a notice.

[57] Nor should it be accepted that the fact the issue and service of a subpoena issued by an Australian court to a foreign addressee might offend international comity will necessarily mean that leave to issue and serve the subpoena cannot be granted. As Giles CJ Comm D said in News Corporation Ltd v Lenfest (at 259D), resistance to the exercise of powers that might impinge on foreign sovereignty has not been universal. His Honour also suggested that the general principle referred to by Hoffman J in Mackinnon had not only been undermined by "the realities of modern trade and communications and the prevalence of the multinational conglomerate"; substantial inroads had also been made upon that principle by certain rules of court. In his Honour's view, resort to those rules or processes ancillary to them, should not always "be excluded by respect for the sovereignty of foreign States" (at 259F). That is not to say that the principle of comity should be given less weight, or that countries are more relaxed about comity, in cases involving international commerce: cf Caswell at [117]; Gloucester at [31]-[39]. It may mean, however, that general concerns about comity will not always lead to the refusal of leave to issue or serve a subpoena on a foreign addressee.

(Emphasis added).

1. His Honour's reasons for finding that a power exists, in the appropriate circumstance, to issue an international subpoena were described as "compelling" by Edelman J in Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 890 at [11] (Titan Enterprises). There, his Honour said:

[10] As Wigney J explained [in Ceramic Fuel Cells], it was, and remains, controversial whether the Court has power to grant leave to issue a subpoena to a person outside Australia. Although some prior cases dealing with different rules of court had indicated that courts should not grant leave to serve international subpoenas, Wigney J held that in an appropriate case leave could be granted, having regard to international law and comity and the need to exercise care and restraint. The importance of care and restraint arises because an international subpoena can be dangerously misleading. Where ... the subpoena is not capable of enforcement it is, as Allsop J said in Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 [12], "an empty threat, or the equivalent of a mere request couched in imperative terms".

[11] ... In summary, in relation to the exercise of power to grant leave it is necessary to have regard to the need for compliance with international law (which, at least sometimes, can be considered without expert evidence: Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) [2013] FCA 323 , 413 - 414 [31] - [32], 417 [48] (Perram J)) and international comity. All the circumstances must be considered. Common factors include ([59]):

(1) the nature of the subpoena;

(2) the nature of the particular proceedings and (in the case of a subpoena to produce documents) the importance of the documents to the issues in those proceedings;

(3) the attitude of the subpoenaed party (if known or ascertainable);

(4) the foreign country involved; and

(5) the law in, and attitude of, the foreign country regarding foreign subpoenas and whether they impinge upon the country's sovereignty.

[12] His Honour also explained that the "absence of the means to enforce a subpoena served on a foreign addressee is better viewed as a discretionary reason why a subpoena should not be issued or served on a foreign addressee, rather than a reason why it should be found that the court does not have the power to issue or grant leave to serve such a subpoena" ([61]). Other discretionary factors will include whether or not the issuing party has exhausted all other avenues to obtain the documents sought.

(Emphasis added).

1. It is noted that the language of r 10.44 of the Rules has been amended since it was considered in Ceramic Fuel Cells and Titan Enterprises: see Federal Court Legislation Amendment Rules 2022 (Cth). That being so, this Court continues to decide applications made under the current iteration of r 10.44 upon the footing that it confers a power to grant leave to serve a subpoena upon a foreign addressee: see, eg, Bluetag Australia Pty Ltd v BCC Trade Credit Pty Ltd trading as Bond and Credit Co [2023] FCA 1459 [12] - [13]; Toyota Jidosha Kabushiki Kaisha v OZI4X4 Pty Ltd [2025] FCA 768. Prima facie, there is nothing in the language of r 10.44, as it presently exists, that undermines such approach.
2. Accordingly, and having regard to the factors canvassed above, the evidence before the Court discloses sufficient reason for the issuing of the proposed subpoena to Appian:

(1) the proposed subpoena is not onerous - it is limited to what appears to be a precise set of documents (see supra [10]) which unquestionably exist.

(2) the Documents are important to the proceedings - they bear a high degree of relevance to the issue of the quantum of MSI's claim (which is to be the subject of various expert reports and opinions).

(3) this matter is listed for hearing for three weeks commencing 30 March 2026 (per Order 18 of the April Orders) - the issuing of the subpoena is likely to preserve the trial dates to the greatest extent possible.

(4) Appian is registered in the United Kingdom, being a jurisdiction in which, in general terms, the laws and attitudes to the service of subpoenas of a foreign court are known: see Sweeney v Howard [2007] NSWSC 262 [11] (Sweeney); cf Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd [2021] VSC 757; (2021) 65 VR 146, 180 [108].

1. To that, it might be added that it might legitimately be understood as being notorious, in a legal sense, that the receipt of subpoenas in the United Kingdom from foreign jurisdictions is not, prima facie, regarded as an interference in that country's sovereign affairs. Indeed, in line with the observations of both Windeyer J in Sweeney (at [11]) and Giles CJ in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 (at 259), it is unlikely that offence would be taken. On any objective view, most modern western democracies would accept that in circumstances where their citizens, including those of a corporate ilk, engage in international trade and commerce, it is likely that they will, from time to time, be the subject of, or peripheral to, litigation in a foreign forum. In those circumstances, the issuing of subpoenas is a likely concomitant of the engagement in international trade. No doubt it would be a great deterrence to a country's trade were it to refuse to accept the importance of the processes of the commercial courts of the countries in which its citizens do business.
2. In Ceramic Fuel Cells, consideration was also afforded to the fact that the Court has no real or effective power to enforce a subpoena upon a foreign addressee (at 354 [61]). There:

[6] ... [t]hat consideration was not found to be a weighty factor in deciding whether to issue a subpoena to US Bank National Association given the assurance that had apparently been given in relation to compliance with the subpoena. Of course, the subsequent refusal by US Bank National Association to comply with the subpoena only serves to highlight the importance of giving close consideration to the evidence as to whether compliance with the subpoena is likely to be an issue.

(Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc (No 2) [2016] FCA 1059; (2016) 245 FCR 362, 364 [6]).

1. Here, the import of that consideration must be understood in light of the finding (at supra [43]) that there is insufficient evidence before the Court to suggest that there exists a real likelihood that Appian would give the Documents to Atlantic Nickel if asked to do so. In my view, such finding does not intractably lead to the conclusion that any subpoena issued by MSI to Appian would comprise "an empty threat" (Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 [12]). That is because the terms of such a writ do not ask Appian to do an act (cf the effect of a Sabre Corporation order), but instead oblige it to do so (such that any failure on its behalf may reasonably be thought to attract some detriment, commercial or otherwise). Thus, it may be said that there is a greater incentive for Appian to comply with a subpoena, as opposed to a request derivative of an order proposed by paragraphs [3A] - [3B] of the Application.
2. MSI proposes that that incentive should be strengthened by the making of a consequential order that, should Appian fail to produce the Documents in accordance with the terms of the proposed subpoena, then (a) "those parts of Atlantic Nickel's Amended Defence by which it puts in issue the amount of loss and damage that MSI alleges it has suffered" should be struck out; and (b) MSI may file and serve an application under Division 5.2 of the Rules. That is a bridge too far. One must bear in mind that it is Atlantic Nickel - not Appian - who is the party to the litigation in this Court and, in the present context, it would not be appropriate for them to be made liable, in the drastic manner proposed, for the decision of another to rebuff the processes of the Court.
3. In the result, the factors identified above are sufficient to warrant the issuance of the proposed subpoena to Appian under rr 24.01, 24.12 and 10.44. That said, the attitude of the government of Brazil to the issuance of subpoenas is not sufficiently notorious. There is no evidence before the Court vis-à-vis the appropriateness of issuing a subpoena to a company resident in Brazil. In that circumstance, the Part B Application, insofar as it relates to Fund II, should not succeed.

1. MSI proposes to serve the subpoena sought by Part B of the Application upon Appian first, by delivering a copy of the subpoena to Appian's registered office in the United Kingdom, second, by sending a copy of the subpoena to representatives of Appian, Allens and KWM, and third, by delivering a copy of the subpoena to the address for service given by Atlantic Nickel.
2. With respect to the first alternative, it is noted that r 10.46 of the Rules provides that a document to be served outside Australia "need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected". In turn, the Companies Act accepts that a "document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company's registered office": per s 1139(1). Appian is a company registered under that Act. Its "registered office address" is, as of August 2025, 5th Floor, 45 Pall Mall, London SW1Y 5JG. As such, it is appropriate that an order be made for service of the relevant subpoena to be effected by MSI "leaving it at, or sending it by post to" the aforementioned office address; no further proposal for service need be considered.
3. As an aside, it is noted that MSI also sought orders in relation to the substituted service of its proposed subpoena upon Fund II. Given that it is not appropriate to issue any such subpoena to that entity (see supra [57]), there is no need to consider that topic further.
4. In the result, I am satisfied that it is appropriate to grant leave for MSI to issue a subpoena to Appian to produce the Documents, such subpoena to be served at its registered office address.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

MARTIN MADDEN, SCOTT DAVID HARRY LANGDON AND RICHARD SCOTT TUCKER AS JOINT AND SEVERAL RECEIVERS MIRABELA NICKEL LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)

MARTIN MADDEN, SCOTT DAVID HARRY LANGDON AND RICHARD SCOTT TUCKER AS JOINT AND SEVERAL RECEIVERS MIRABELA INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)