Adani Mining Pty Ltd v Pennings (No 2) - [2025] QSC 157

SUPREME COURT OF QUEENSLAND

CITATION:

Adani Mining Pty Ltd & Anor v Pennings (No 2) [2025] QSC 157

PARTIES:

ADANI MINING PTY LTD ACN 145 555 205

(First Plaintiff)

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

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2025

JUDGE:

Freeburn J

ORDER:

1.   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 paragraph 2.

2.   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.

3.   I will hear the parties on costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DOCUMENTS IN POSSESSION OF NON-PARTY – where the plaintiffs filed and served a first notice of non-party disclosure on the respondent – where the respondent objected to the first notice of non-party disclosure – where the plaintiffs then served a second notice of non-party disclosure on the respondent– where the respondent also objected to the second notice of non-party disclosure – where the effect of the objection is to stay the notice – where the plaintiffs have brought an application to lift the stay and for the respondent to produce the documents specified in categories 1-13 of the schedule to the second notice – where only categories 4,7 and 12 remained 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) 38 SR (NSW) 564, cited

Flight v Robinson (1844) 8 Beav 22, cited
Smith v O’Leary [2001] QDC 197, cited

Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, cited

COUNSEL:

M T Hickey KC with A J Schriiffer for the Applicants

S McCarthy for the Respondent

SOLICITORS:

Dowd + Wilson for the Applicants
Corrs Chambers Westgarth for the Respondent

Introduction

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QSC 157
Decision Date: 2 July 2025

CaseChat Overview and Summary

The case of Adani Mining Pty Ltd v Pennings (No 2) involved a dispute concerning the discovery and inspection of documents held by a non-party to the litigation. The plaintiffs, Adani Mining Pty Ltd, sought documents from the respondent, Pennings, who was in possession of documents potentially relevant to the plaintiffs' case. Initially, the plaintiffs served a first notice of non-party disclosure on Pennings, which was objected to. Subsequently, a second notice of non-party disclosure was served, also objected to by Pennings, resulting in a stay of the notice. The plaintiffs then applied to lift the stay and compel the production of certain documents specified in categories 1 to 13 of the schedule to the second notice. Only categories 4, 7, and 12 remained contested at the hearing of the application.

The primary legal issues before the court were whether the stay on the second notice of non-party disclosure should be lifted and whether the non-party should be compelled to produce the documents in categories 4, 7, and 12. The court had to consider the relevance and proportionality of the requested documents in relation to the plaintiffs' case, as well as the grounds for Pennings' objections. The court needed to determine whether the plaintiffs had a sufficient basis to compel the production of the documents from a non-party and if doing so was necessary for the just determination of the proceeding.

In its decision, the court ruled that the stay of the second notice of non-party disclosure should be lifted, allowing for the notice to be amended. The court found that categories 4 and 12 could be deleted from the notice, while category 7 should be amended to reflect specific document types. The court also outlined that it would hear the parties on the issue of costs. The court concluded that the plaintiffs had a legitimate need for the documents in categories 7 and 12, which were relevant and proportionate to their case, and thus the non-party should be directed to produce those documents.

The final orders included the lifting of the stay on the second notice of non-party disclosure, the amendment of the notice by deleting category 4 and modifying categories 7 and 12 as specified in the reasons, and a direction for the parties to address the issue of costs.

Orders

Orders of the court

1. 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 paragraph 2.

2. 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.

3. I will hear the parties on costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Adani Mining Pty Ltd & Anor v Pennings (No 2) [2025] QSC 157
PARTIES:	ADANI MINING PTY LTD ACN 145 555 205 (First Plaintiff) 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
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 July 2025
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2025
JUDGE:	Freeburn J
ORDER:	1. 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 paragraph 2. 2. 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. 3. I will hear the parties on costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS – DOCUMENTS IN POSSESSION OF NON-PARTY – where the plaintiffs filed and served a first notice of non-party disclosure on the respondent – where the respondent objected to the first notice of non-party disclosure – where the plaintiffs then served a second notice of non-party disclosure on the respondent– where the respondent also objected to the second notice of non-party disclosure – where the effect of the objection is to stay the notice – where the plaintiffs have brought an application to lift the stay and for the respondent to produce the documents specified in categories 1-13 of the schedule to the second notice – where only categories 4,7 and 12 remained 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) 38 SR (NSW) 564, cited Flight v Robinson (1844) 8 Beav 22, cited Smith v O’Leary [2001] QDC 197, cited Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, cited
COUNSEL:	M T Hickey KC with A J Schriiffer for the Applicants S McCarthy for the Respondent
SOLICITORS:	Dowd + Wilson for the Applicants Corrs Chambers Westgarth for the Respondent