Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 15)

[2018] QLC 39

LAND COURT OF QUEENSLAND

CITATION:

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No 15) [2018] QLC 39

PARTIES:

Cherwell Creek Coal Pty Ltd
(ACN 063 763 002)
(applicant)

v

BHP Queensland Coal Investments Pty Ltd
(ACN 063 763 002)
QCT Resources Pty Ltd
(ACN 010 808 705)
BHP Coal Pty Ltd
(ACN 010 595 721)
Mitsubishi Development Pty Ltd
(ACN 009 779 873)
QCT Investments Pty Ltd
(ACN 010 487 831)
Umal Consolidated Pty Ltd
(ACN 000 767 386)
QCT Mining Pty Ltd
(ACN 010 487 840)
(respondents)

and

QCoal Pty Ltd
(ABN 99 010 911 234)
Christopher Ian Wallin
Paul Alan Whimp
(non-party respondents to the application)

FILE NO:

MRA1332-08

DIVISION:

General division

PROCEEDING:

Hearing of application

DELIVERED ON:

24 October 2018

DELIVERED AT:

Brisbane

HEARD ON:

22 October 2018

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

The application is dismissed.1.          

BMA must pay the costs of the respondents to the application.2.          

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY OF DOCUMENTS – NON-PARTY DISCLOSURE - where non-parties closely related to the applicant – where non-parties disputed the relevance of the required documents – whether documents sought were directly relevant to an issue on the pleadings – where application was dismissed

Uniform Civil Procedure Rules ch 7 pt 2, r 242, r 248

Creswick & Ors v Creswick [2009] QSC 219, cited

APPEARANCES:

G Gibson QC, with J Chapple and N Loos of Counsel (instructed by Holding Redlich Lawyers) for the applicant

A Stumer of Counsel (instructed by Allens) for the respondents

1. Cherwell Creek Coal Pty Ltd claims compensation from BHP Queensland Coal Investments Pty Ltd and the other respondent companies (BMA) for loss of the opportunity to commercialise the coal resource on an area of land over which Cherwell Creek formerly held an exploration permit.

1. BMA seeks disclosure of documents by QCoal Pty Ltd, Mr Christopher Wallin, and Mr Paul Whimp. None of them is a party to Cherwell Creek’s claim and the rules relating to non-party disclosure apply.[1] 

   [1]Uniform Civil Procedure Rules 1999 ch 7, pt 2.

1. Each of the respondents to this application is closely associated with Cherwell Creek, Mr Wallin particularly so, as the following chart demonstrates:

1. The shareholding in Cherwell Creek is held 50% by QCoal and 50% by Mr Wallin, who is also a director of Cherwell Creek and the sole director of QCoal. QCoal is the wholly owned subsidiary of Queensland Resources Holdings Pty Ltd. Both Mr Wallin and Mr Whimp are directors of QRH and each holds 40% of the shares in that company.

1. The legal principles are not in dispute. Because the respondents did not formally object to notices of non-party disclosure, the application is for production of documents rather than to life a stay of the notices.[2] The Court may direct the respondents to comply with the notice and make another order it considers appropriate.[3]

   [2] UCPR r 248.

   [3] UCPR r 248(2).

1. However,…