Santos Limited v Fluor Australia Pty Ltd

Santos Limited sought further discovery from Fluor Australia Pty Ltd in relation to a contract for engineering and construction works for a coal seam gas project. The contract stipulated that labour costs were to be paid according to a set of agreed rates. During the litigation, the parties agreed to a disclosure protocol. Santos applied for a further order for disclosure, seeking documents relating to labour costs, overhead costs, and the components and calculation basis of the rates in the contract. Santos tendered expert evidence stating that the expert required access to these documents to form a view on whether the pleaded allegations were correct. Santos' solicitor stated that their understanding was the basis for the allegations in the statement of claim that Fluor had charged Santos an amount that included an impermissible charge for "fee and profit". The judge of first instance dismissed the application, and Santos appealed the discretionary ruling concerning practice and procedure.

The appeal raised the issue of whether Santos had established an error of fact or law and whether it had demonstrated that a substantial injustice had been occasioned. The court considered the nature of the documents sought, the existing disclosure, and the basis of Santos' allegations. The court found that Santos had not established an error of fact or law in the judge's discretionary ruling and that no substantial injustice had been shown. The court held that the documents sought were not necessary for the expert to form a view on the allegations, as the allegations were based on Santos' solicitor's understanding rather than on the documents themselves.

The appeal was dismissed with costs. The court found that the judge of first instance had correctly exercised their discretion in denying the further order for discovery. The court emphasised that the burden was on Santos to demonstrate that a substantial injustice would result from the denial of the order. Santos had not met this burden, and the appeal was unsuccessful. The orders of the court below were affirmed, and Santos was ordered to pay Fluor's costs of the appeal.