Buma Australia Pty Ltd v Queensland Power Company Pty Ltd

[2025] QSC 33

SUPREME COURT OF QUEENSLAND

CITATION:

Buma Australia Pty Ltd v Queensland Power Company Pty Ltd [2025] QSC 33

PARTIES:

BUMA AUSTRALIA PTY LTD
ABN 28 649 634 579

(Applicant)

v

QUEENSLAND POWER COMPANY PTY LTD ACN 087 295 583

(First respondent)

QUEENSLAND POWER (AUSTRALIA) PTY LTD ACN 087 293 409

(Second respondent)

MILLMERRAN INVESTMENT COMPANY I PTY LTD ACN 088 432 599

(Third respondent)

MILLMERRAN INVESTMENT COMPANY II PTY LTD ACN 088 432 615

(Fourth respondent)

MILLMERRAN INVESTMENT COMPANY III PTY LTD ACN 088 432 642

(Fifth respondent)

MILLMERRAN INVESTMENT COMPANY IV PTY LTD ACN 088 432 679

(Sixth respondent)

MILLMERRAN INVESTMENT COMPANY V, PTE LTD ARBN 088 432 722

(Seventh respondent)

AND

MILLMERRAN INVESTMENT COMPANY VI, PTE LTD ARBN 088 432 795

(Eighth respondent)

FILE NO/S:

BS13604 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

In chambers, on the papers

JUDGE:

Hindman J

ORDER:

1.    By 5pm on 17 April 2025, the parties are to make disclosure of all documents responsive to categories 9 and 16 and the agreed second tranche of disclosure.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – where the parties were to confer with a view to agreeing on categories of documents for disclosure and the dates by which those categories of documents were to be disclosed – where the respondents disputed some of the disclosure categories and the date for the second tranche of disclosure – whether the documents described in the disputed categories are disclosable – the due date for the second tranche of disclosure

Uniform Civil Procedure Rules 1999 (Qld), rr 5, 211

Queensland Local Government Superannuation Board v Allen [2016] QCA 325

COUNSEL:

M Doyle for the applicant

G Beacham KC with A Psaltis for the respondents

SOLICITORS:

Corrs Chambers Westgarth for the applicant
Herbert Smith Freehills for the respondents

Introduction

1. This is a decision given on the papers at the request of the parties in relation to unresolved disclosure issues in this commercial list proceeding.  There are existing orders dealing with agreed disclosure.  A first tranche of disclosure is to occur by 21 March 2025 (dealing with seven categories of disclosure out of 27 categories in total).  A second tranche of agreed disclosure is to occur by a date to be fixed in this decision.  Any disputed disclosure will be ordered to occur by that same fixed date.     

2. Directions have been made that have resulted in a Redfern schedule detailing the unresolved disclosure issues.  One proposed category of disclosure is disputed in part (category 9), one proposed category of disclosure is disputed in whole (category 16), and the date by which the second tranche of disclosure is to occur is also in dispute.

3. The applicant’s material in relation to the unresolved disclosure issues comprises an affidavit of Muir (court doc 13) and an outline of submissions (court doc 12).  The respondents’ material comprises an affidavit of Shelley (court doc 14) and an outline of submissions (court doc 15).   

Nature of the proceeding

1. The applicant has set out the background to the proceeding at [4]-[9] of its outline of submissions including identifying three overarching issues that arise.  One of those overarching issues is relevant to the two disputed categories of disclosure.  That overarching issue is described as the Reject Coal Issue and concerns whether the respondents have overpaid the applicant for the delivery of allegedly out-of-specification ‘Reject Coal’ on a number of dates since February 2023 for which (on the respondents’ case) a lower ‘Reject Price’ ought to have been paid under the Contract Mining Agreement.

2. There are sub-issues including whether the relevant coal was in fact ‘Reject Coal’, whether the respondents should be prevented from treating any coal as ‘Reject Coal’ and if there was ‘Reject Coal’ whether the mechanism for pricing ‘Reject Coal’ is void as an unenforceable penalty. 

3. The respondent says that background set out by the applicant is largely uncontentious but notes two matters at [3] of its outline of submissions.

Relevance test

1. The test required for documents to be disclosable under rule 211 UCPR is well known. In Queensland Local Government Superannuation Board v Allen [2016] QCA 325 at [74], Burns J with whom the other members of the Court agreed stated (citations omitted):

   The touchstone of the party’s obligation to give disclosure is direct relevance to an allegation in issue on the pleadings.  A document will be directly relevant in that sense if it tends to prove or disprove such an allegation.

Category 9

1. The disputed part of category 9 concerns the applicant’s request for: 

   Documents recording or evidencing measurements of coal characteristics by:

   (a)   MPP;[1]

   (b)   third parties (other than the Independent Laboratory) engaged by MPP,

   from 1 September 2022 to 31 August 2024.

   [1] MPP is the respondents. 

2. I take from the respondents’ outline of submissions that no dispute about the need to disclose the documents in (a) above is disputed by the respondents.  Only (b) is disputed by the respondents.   

3. In a summary way, the applicant contends third party testing (of which there is some evidence that it exists) is directly relevant to the pleaded allegations that both the Independent Laboratory and Ash Analyser results (conducted by the respondents) were inaccurate. 

4. I agree that such documents are directly relevant to the pleaded allegations in the sense required to make the category of documents disclosable.  That in due course the applicant may seek to amend its pleading to rely upon an inference to be drawn from such test results that the testing conducted by the respondent was not accurate, is not to the point.  The documents sought are documents that might be used prove or disprove the allegation that the testing conducted by the respondent was not accurate.

5. Nor is it to the point that such documents could only persuasively prove or disprove the allegation if those results were shown to be accurate and able to be fairly compared to the testing undertaken by the respondents.  That might affect weight or use of that evidence at trial but does not mean the documents do not assist to prove or disprove the allegation of inaccuracy.   

6. Those conclusions are sufficient to make the category disclosable.

Revised category 16

1. Revised category 16 concerns the applicant’s request for:

   Documents (including communications with contractors and consultants) recording or relating to any:

   (a)   issues (including stoppages, decreased in belt speed, blockages or derating) with respect to the handleability of the coal fed into the Power Station or any associated infrastructure;

   (b)   issues with respect to the energy produced from the burning of coal fed into the Power Station;

   (c)   the reasons for the same,

   between 1 January 2022 and 3 September 2024.

2. In a summary way, the applicant contends that the documents are directly relevant to the allegation in [58(a)] of the Reply – whether at the time of contracting, the operation of the Power Station would or was likely to be materially impacted by the delivery of Reject Coal.   This allegation is linked to the applicant’s arguments about the pricing mechanism for Reject Coal being an unenforceable penalty.

3. There is no dispute by the respondents as to the applicable law about penalties.

4. Again the issue raised by the respondents is a pleading one.  They say the documents are sought to support an inference about what was foreseeable at an earlier time, and no inference is pleaded. 

5. For similar reasons I reject the respondents’ submissions.  The documents sought (over the time period sought) are directly relevant to the pleaded allegations.  That in due course the applicant may seek to amend its pleading to rely upon an inference to be drawn from such data that certain things were foreseeable is not to the point.  The documents sought are documents that might be used prove or disprove the allegation that the likely foreseeable loss to the respondent from the delivery of Reject Coal was such that the contractual provisions were penal in nature. 

6. Category 16 (in its revised form as set out above) is disclosable.

Disputed date for further disclosure

1. The applicant presses for the further disclosure by 4 April 2025, the respondents press for the date of 17 April 2025.  The difference of two weeks is minor in the context of the progress of the proceeding as a whole, even for a commercial list proceeding where expedition can be particularly important. 

2. I will give the respondents the extra time they have requested.  It is sufficiently justified in the affidavit of Mr Shelley. 

3. The date of 17 April 2025 will be the date for the second tranche of disclosure, noting that consistent with rule 5 UCPR, disclosure (even by way of tranches) should be given as soon as it is available.

Costs

1. I will hear and determine any application for costs relating to the unresolved disclosure issues at the next commercial list review of the matter, if costs are not otherwise agreed.