Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 2)

Whitehaven WS Pty Ltd brought an application against the Australian Conservation Foundation Inc, seeking an order for disclosure against a non-party, Sabre, under the Federal Court Rules. The case centred on the production and inspection of documents, specifically seeking disclosure from a non-party to the proceedings. The application for these disclosure orders, referred to as Sabre orders, was made just 14 business days before the substantive hearing. The Foundation opposed the application, raising concerns about the lateness of the application, the exclusion of non-parties from such orders, confidentiality issues, and the futility of the application. Whitehaven argued that the requested material was legitimate, forensic, relevant, and useful to their case.

The court had to determine whether the factors present in the case weighed in favour of making the disclosure orders. The Foundation argued that the lateness of the application was a significant impediment, as the short timeframe provided little opportunity for Sabre to respond. Additionally, the Foundation contended that non-parties should generally not be subject to such disclosure orders. Confidentiality concerns were also raised, as the disclosure could potentially expose sensitive information. Furthermore, the Foundation argued that the application was futile, as Whitehaven had not demonstrated a compelling need for the documents. Whitehaven, on the other hand, asserted that the documents were crucial to their case and had not been adequately addressed by the Foundation’s arguments.

The court considered the arguments presented and determined that the factors against making the disclosure orders outweighed those in favour. The lateness of the application, the exclusion of non-parties from such orders, confidentiality concerns, and the perceived futility of the application collectively led the court to dismiss the General Application filed by the active objectors on 1 July 2025. The court concluded that these factors were significant enough to prevent the granting of the requested disclosure orders against the non-party, Sabre.

The court's decision underscored the importance of timely applications and the need for clear justification when seeking disclosure from non-parties. The dismissal of the application reflects the court’s cautious approach to such orders, particularly when raised close to substantive hearings and involving non-parties.