Construction, Forestry, Mining and Energy Union v BHP Coal (No 2)

The Construction, Forestry, Mining and Energy Union initiated proceedings against BHP Coal in the Federal Court of Australia. The dispute concerns an application for non-standard discovery of documents, specifically thirteen categories of documents, before the pleadings have been fully closed. The respondents, BHP Coal, opposed the application, arguing that the discovery sought was burdensome and oppressive.

The primary legal issue before the Court was whether an order for discovery should be made and, if so, whether the discovery should be ordered according to the specific categories sought by the applicant or the terms proposed by the respondents. The Court also considered whether the discovery sought by the applicant was oppressive or burdensome to the respondents.

The Court found that while it was not prepared to make orders for discovery of the thirteen categories of documents sought by the applicant, it was prepared to make an order for discovery according to the terms proposed by the respondents. The Court emphasised the importance of ensuring that the process of discovery did not cause injustice or undue burden to the respondents. The Court noted that the respondents had reserved their position on confidentiality and sought liberty to apply for such undertakings. The Court agreed to hear the parties regarding the precise terms of the discovery order, including any requirements for confidentiality undertakings.

The Court made an order that the respondents provide discovery of the documents in the terms they proposed, with liberty for the first and second respondents to apply for confidentiality undertakings. The matter was adjourned to a later date to address the precise terms of the order and any further submissions from the parties.