Adani Mining Pty Ltd v Pennings

Link copied
Case Copied 14 min read

SUPREME COURT OF QUEENSLAND

CITATION:

 Adani Mining Pty Ltd and Anor v Pennings [2021] QSC 343

PARTIES:

ADANI MINING PTY LTD ACN 145 555 205

(First Plaintiff)

AND

CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685
(Second Plaintiff)

v

BENJAMIN WILLIAM DEVENISH PENNINGS

(Defendant)

FILE NO/S:

BS 9186 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2021

JUDGE:

Callaghan J

ORDER:

1.   The plaintiffs’ first application is allowed.

2.   The plaintiffs’ second application is allowed.

3.   The plaintiffs’ third application is allowed in part.

4.   The defendant’s application is dismissed.

5.   That the parties prepare minutes of orders to reflect the reasons and submissions as to costs by 4 February 2022. If the parties fail to agree on the minutes, the matter will be relisted at a date to be fixed after the parties notify my Associate that agreement cannot be reached.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – APPLICATION FOR ORDER FOR PARTICULARS – PRINCPLES APPLICABLE TO DEFERRAL OF PARTICULARS PENDING DISCLOUSRE – where the plaintiff seeks orders that confidential particulars be provided by example – where the plaintiff seeks that there be a confidentiality regime with respect to the confidential particulars – where the plaintiff seeks that there be a deferral of the provision of any further particulars pending disclosure by the defendant – where the defendant seeks further and better particulars – principles applicable to deferral of particulars pending disclosure

COUNSEL:

G Gibson QC with D Pyle and L Sheptooha for the Plaintiffs D O’Gorman SC with M Walker for the Defendant

SOLICITORS:

Dowd & Company for the Plaintiff
Marque Lawyers Pty Ltd for the Defendant

  1. These applications are the latest skirmishes within wider litigation between the plaintiffs and the defendant.  The background to and nature of the cause have been rehearsed in other judgments.  It makes sense for current purposes to adopt the summary prepared by Brown J in Adani Mining Pty Ltd & Anor v Pennings.[1] That decision provides the background to some of the issues that must now be decided, and explains how they arise out of a conflict between the plaintiffs and a group of environmental activists known as the “Galilee Blockade.”   

    [1][2021] QSC 162 at [1]-[22].

  2. Those issues are raised in four applications before the Court – three are made by the plaintiffs and one by the defendant.

  3. The plaintiffs apply here for orders that:[2]

    1.The confidential particulars be provided by example. (The plaintiffs’ first application).

    2.There be a confidentiality regime with respect to the confidential particulars. (The plaintiffs’ second application).

    3.There be a deferral of the provision of any further particulars pending disclosure by the defendant. (The plaintiffs’ third application).

    [2]Addressed in a sequence convenient for these reasons, these descriptions have been used for the purposes of the orders made.

  4. The defendant makes…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Adani Mining Pty Ltd v Pennings and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] QSC 343
Decision Date

CaseChat Overview and Summary

The case of Adani Mining Pty Ltd v Pennings involved a dispute in the Queensland Supreme Court over the provision of particulars in civil proceedings. The plaintiff, Adani Mining, sought orders for the defendant, Mr Pennings, to provide confidential particulars by example, to establish a confidentiality regime concerning those particulars, and to defer the provision of further particulars pending disclosure by the defendant. The defendant, in turn, sought further and better particulars. The court had to decide whether the plaintiff's requests were permissible and if they would cause any prejudice to the defendant.

The court examined the principles applicable to the deferral of particulars pending disclosure. It noted that while there was no specific authority for the proposed course, the court's power to limit the provision of particulars could be exercised to overcome the potential oppression arising from providing particulars for numerous contracts and negotiations. The court concluded that, provided the plaintiff adhered to certain concessions, the wide terms of rule 16.1 could accommodate the request. Additionally, the court found that particulars by example did not need to be disclosed as they did not raise any expectations for the defendant and would not prejudice the defendant's case. The court also considered the need for non-disclosure, as outlined by Brown J in a previous case.

Regarding the deferral of the provision of further particulars pending disclosure by the defendant, the court found that there was a discretion to make such orders. The court outlined several factors to consider when exercising this discretion, including the plaintiffs' efforts to obtain information, the precision with which they had identified the nature of their case, and whether there was a discernible factual foundation for their case. The court concluded that the plaintiff's request could be granted in part, as the interests of justice would be served by permitting such a course.

In summary, the court allowed the plaintiff's first and second applications, granted the third application in part, and dismissed the defendant's application. The parties were required to prepare minutes of the orders reflecting the reasons and submissions as to costs by 4 February 2022. If the parties could not agree on the minutes, the matter would be relisted at a date to be fixed after the parties notified the court's Associate that agreement could not be reached.

Orders

Orders of the court

1. The plaintiffs’ first application is allowed.

2. The plaintiffs’ second application is allowed.

3. The plaintiffs’ third application is allowed in part.

4. The defendant’s application is dismissed.

5. That the parties prepare minutes of orders to reflect the reasons and submissions as to costs by 4 February 2022. If the parties fail to agree on the minutes, the matter will be relisted at a date to be fixed after the parties notify my Associate that agreement cannot be reached.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In fact, so the argument runs: “the Courts’ exercise of its power to limit the provision of particulars is necessary in the present case to overcome the oppression that arises from providing particulars with respect to 350 contracts and the negotiations for those contracts both in terms of costs and inconvenience.”[19] [19]Further outline of submissions for the plaintiffs at [29](b). Conclusion I have not been referred to any decision that purports to authorise the course proposed,[20] and there is something counterintuitive about the whole procedure. However, so long as the concessions identified in [19] are understood clearly, I am prepared to allow that the plain terms of rule 161 are wide enough to accommodate it. If the plaintiffs are held to those concessions, the defendant should suffer no prejudice. In those circumstances, the plaintiff’s first application should succeed, and the defendant’s application must be dismissed.[20]T1-25-39.The Second Application - Confidentiality The plaintiffs submit that once the concept of “particularisation by example” is understood in the way it is explained above, they are in a position to insist that the particulars can remain confidential. The defendant again counters with some conventional wisdom. He points out that whilst some authority might allow the withholding of disclosed material from a defendant, there is none that goes so far as to withhold from the defendant’s knowledge the basis of the case that is brought against him – and that is what the particulars are. If cloaking particulars in confidentiality would frustrate efforts to obtain meaningful instructions and compromise the progress of the trial at any stage, beginning with disclosure, the defendant’s points would be well made. However, as noted, the particulars by example do not of themselves raise any expectations of the defendant. By reason of this (for particulars, unusual) characteristic, I do not believe they have to be disclosed. There is no forensic need, nor prejudice sustained if they are not. On the other hand, considerations canvassed in detail by Brown J[21] remain relevant, and support the need for non-disclosure. The plaintiffs’ second application should also succeed. I have already noted that the defendant’s application should be dismissed.The plaintiffs’ third application – for deferral of the provision of any further particulars pending disclosure by the defendant[21]Adani Mining Pty Ltd v Pennings [2021] QSC 162 at [60]-[69] and [73]. I was referred to many cases said to be relevant to the way in which this application should be approached. A number of principles can be distilled directly from those authorities, and others emerge from consideration of the forces that are at work in this type of situation. I proposed to the parties, and they accepted, that I should proceed on the following basis: 1. There is a discretion to make such orders.2. They should be regarded as atypical, but orders may be made if the interests of justice are satisfied by permitting such a course. The ultimate objective is to mould the Court’s procedures so as to serve these interests.3. One situation in which the discretion might be exercised is where the defendant has knowledge of relevant facts to which the plaintiffs do not have access. Especially is this so where the obscured material must be discovered if the plaintiff is to establish his right to relief at the trial.4. Factors that may have a bearing on the way in which the discretion might be exercised include:a. whether the plaintiffs have exhausted the means available to obtain information needed to advance their case;b. whether the plaintiffs have then identified, with as much precision as is reasonably possible, the nature of their case;c. whether, after doing these things, the plaintiffs can point to a discernible factual foundation for their case, such that their request cannot be dismissed on the basis that it is no more than a fishing expedition;d. whether the factual foundation appears on the face of the materials, without the need for further explanation;e. whether the plaintiffs acknowledge the need for and express a willingness to provide further and better particulars after discovery by the defendant has been effected; andf. whether and to what extent the making of the order may cause hardship for the defendant.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.