BHP Billiton Ltd v Dunning

Case [2013] NSWCA 421

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: BHP Billiton Ltd v Dunning [2013] NSWCA 421
Hearing dates:26 November 2013
Decision date: 10 December 2013
Before: Macfarlan JA at [1];
Gleeson JA at [2];
Young AJA at [67]
Decision:

Application for leave dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - discovery and inspection of documents - applicant seeking leave to appeal against a decision of a judge of the Dust Diseases Tribunal of NSW on a matter of practice and procedure - Part 23 Supreme Court Rules 1970 - whether the primary judge's reference to documents which could inform the ultimate questions was misconceived - whether the primary judge incorrectly relied upon the train of inquiry test in ordering discovery
Legislation Cited: Dust Diseases Tribunal Act 1989, s 33
Dust Diseases Tribunal Rules, r 7
Supreme Court Rules 1970, Pt 23, rr 1, 3
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Amaba Pty Ltd v Booth [2010] NSWCA 344
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Australian Competition and Consumer Commissioner v Radio Rentals Ltd and Another [2005] FCA 1133; 146 FCR 292
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Kostas & Anor v HIA Insurance Services Pty Ltd & Anor [2010] HCA 32; 241 CLR 390
Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 470
Lee v New South Wales Crime Commission [2012] NSWCA 276
Macquarie Bank Ltd v Sixth-Fourth Throne Pty Ltd [1998] 3 VR 133
McPherson's v Eaton [2005] NSWCA 435; 65 NSWLR 187
National Australia Bank Ltd and others v Idoport Pty Ltd [2000] NSWCA 8
RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123
Re Chisum Services Pty Ltd (1982) (1982) 7 ACLR 641
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148
Zelden v Sewell [2011] NSWCA 56
Category:Principal judgment
Parties: BHP Billiton Limited (Applicant)
Jake Douglas Dunning as Tutor for Steven Douglas Dunning (Respondent)
Representation: Counsel:
G Parker SC with D Talintyre (Applicant)
P Semmler QC with S Tzouganatos (Respondent)
Solicitors:
Piper Alderman (Applicant)
Slater & Gordon (Respondent)
File Number(s):2013/287847
 Decision under appeal 
Jurisdiction:
9115
Citation:

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AGLC
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Case
[2013] NSWCA 421
Decision Date

CaseChat Overview and Summary

BHP Billiton Ltd sought leave to appeal to the Supreme Court of New South Wales against a decision of a judge of the Dust Diseases Tribunal of NSW. The dispute concerned discovery of documents in proceedings brought by Mr Dunning.

The primary legal issues before the Supreme Court were whether the primary judge had misconceived the scope of discovery by referring to documents that could inform the ultimate questions, and whether the primary judge had incorrectly applied the "train of inquiry" test when ordering discovery.

The Court of Appeal held that the primary judge's approach was not misconceived. It was noted that the "train of inquiry" test, as understood in the context of discovery, permits discovery of documents that may lead to other evidence, even if those documents themselves do not directly prove or disprove a claim. The Court found that the primary judge's reference to documents that could inform the ultimate questions was consistent with this principle, as such documents could indeed lead to further lines of inquiry or evidence.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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