BHP Billiton Ltd v Dunning

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.