Shoreform (Qld) Pty Ltd v Millenium Coal Pty Ltd - [2013] FCA 645

FEDERAL COURT OF AUSTRALIA
Shoreform (Qld) Pty Ltd v Millenium Coal Pty Ltd [2013] FCA 645

Citation: Shoreform (Qld) Pty Ltd v Millenium Coal Pty Ltd [2013] FCA 645

Parties: SHOREFORM (QLD) PTY LTD ACN 115 107 250 v MILLENIUM COAL PTY LTD ACN 089 566 021 and PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699

File number: NSD 2347 of 2011

Judge: ROBERTSON J

Date of judgment: 3 July 2013

Catchwords: DISCOVERY – standard discovery – whether reasonable search – documents referred to in discovered documents – whether direct relevance to issues raised by the pleadings – particular discovery – evidence

Legislation: Federal Court Rules 2011 (Cth) rr 20.14, 20.15 and 20.22

Cases cited: Guy Carpenter and Co Pty Ltd v Grove (No 2) [2011] FCA 1190
Procter v Kalivis (2009) 263 ALR 461

Date of hearing: 26 June 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 62

Counsel for the Applicant Mr P Barham

Solicitors for the Applicant Fraser Clancy Lawyers

Counsel for the Respondents Mr N Kidd SC

Solicitors for the Respondents McCullough Robertson Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2347 of 2011

BETWEEN:
SHOREFORM (QLD) PTY LTD ACN 115 107 250
Applicant

AND:
MILLENIUM COAL PTY LTD ACN 089 566 021
First Respondent

PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699
Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

3 JULY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant have leave to amend its interlocutory application filed on 23 November 2012 in accordance with its oral application to amend made on 26 June 2013.
2.Within 7 days the applicant file and serve an amended interlocutory application pursuant to that leave.
3.Within 21 days the respondents file and serve a further affidavit of discovery in relation to the following items listed in MFI 1:
(a)item 4, the respondents’ assessment for Commercial Concrete Constructions Queensland Pty Ltd’s invoices Q027 and Q030;
(b)item 13, second bullet point, any documents relied on by Mr Cameron Vorias, the author of the letter dated 21 April 2006, in making the statement that Millennium Coal Pty Ltd had undertaken to pay all commitments made on the Millennium project since 1 December 2005;
(c)item 14, as to contract no 3145; and
(d)item 17, as to the payment certificate of invoice Q30.

4.The applicant’s interlocutory application filed on 23 November 2012, as amended, be otherwise dismissed.
5.The applicant pay the respondents’ costs of the interlocutory application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2347 of 2011

BETWEEN:
SHOREFORM (QLD) PTY LTD ACN 115 107 250
Applicant

AND:
MILLENIUM COAL PTY LTD ACN 089 566 021
First Respondent

PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699
Second Respondent

JUDGE:

ROBERTSON J

DATE:

3 JULY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

These reasons deal with a dispute about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCA 645
Decision Date

CaseChat Overview and Summary

In Shoreform (Qld) Pty Ltd v Millenium Coal Pty Ltd, the Federal Court of Australia considered a dispute regarding the discovery of documents by the respondents, Millenium Coal Pty Ltd and Peabody Australia Mining Pty Ltd. The applicant, Shoreform (Qld) Pty Ltd, sought an order for standard discovery, requiring the respondents to discover all documents within their custody, control, and power within certain categories listed in a letter dated 27 November 2012. Alternatively, the applicant sought an order that the respondents serve an amended list of documents of standard discovery. The applicant also sought, as a fallback position, an order for particular discovery, being discovery of the material sought in accordance with the written submissions.

The court considered the claims made by the applicant and found that most of the claims were either abandoned or not the subject of specific submission. The court held that the respondents had conducted a reasonable search and that the applicant had not satisfied the court that there were reasonable grounds for being fairly certain that there were other directly relevant documents. The court also rejected the applicant's argument that a large number of documents should have been discovered because those documents were referred to in the documents which the respondents had discovered. Instead, the court held that whether or not a document is discoverable for relevance must be assessed by whether or not it is directly relevant to the issues raised by the pleadings.

The court did, however, order the respondents to file a further affidavit under rule 20.22 having conducted a further specific search, deposing to the results of that search, and including further discovery of any resulting documents in relation to certain items listed in the applicant's submissions. These items included the respondents' assessment for Commercial Concrete Constructions Queensland Pty Ltd's invoices Q027 and Q030, any documents relied on by Mr Cameron Vorias, the author of the letter dated 21 April 2006, in making the statement that Millenium Coal Pty Ltd had undertaken to pay all commitments made on the Millennium project since 1 December 2005, any documents in relation to contract no 3145, and the payment certificate of invoice Q30.

In conclusion, the court dismissed the applicant's interlocutory application with the exception of the orders outlined above. The applicant was also ordered to pay the respondents' costs of the interlocutory application.

Orders