FEDERAL COURT OF AUSTRALIA

Esso Australia Pty Ltd v Australian Workers Union (No 3) [2020] FCA 316

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm, Thursday 12 March 2020, counsel for the parties are to confer, and the parties are to submit draft orders for the Court’s consideration to give effect to the reasons, and to provide for the further conduct of the proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    These reasons relate to my conclusions concerning an application by the respondent pursuant to r 20.21 of the Federal Court Rules 2011 (Cth) that the applicants make discovery of particular documents. As the application is one relating to practice and procedure, and its resolution depends largely upon discretion and value judgments, I shall endeavour to keep the reasons as concise as the circumstances permit.

2    The applicants seek orders for the imposition of penalties and statutory compensation under the Fair Work Act 2009 (Cth) in relation to unprotected industrial action organised by the respondent from 6 March 2015 to 17 March 2015 at the Longford plant in Gippsland, Victoria, which forms part of the Gippsland Basin Joint Venture for the processing of oil and gas from offshore platforms in Bass Strait. The industrial action was organised during a planned shutdown for maintenance purposes of the crude system at the Longford plant. The organisation of the industrial action was the subject of declarations numbered 5 to 13 made at first instance by Jessup J on 13 August 2015 following the publication of findings of contravention: Esso Australia Pty Ltd v Australian Workers’ Union [2015] FCA 758; 253 IR 304. Jessup J declared that by organising industrial action the respondent had contravened s 346(b) and s 348 of the Fair Work Act. On ultimate appeal in Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54; 263 CLR 551, the High Court declared that the industrial action that was taken subsequent to the respondent’s contravention on 6 March 2015 of an order made by the Fair Work Commission was not protected industrial action. I have set out the circumstances of the proceeding in more detail in an earlier judgment concerning discovery issues: Esso Australia Pty Ltd v Australian Workers’ Union (No 2) [2018] FCA 2089 at [2] to [6]. The precise industrial action that was organised by the respondent, and its effect on the course of the maintenance shutdown in March 2015, are put in issue by the respondent.

3    The respondent’s application for discovery of documents concerns the applicants’ claim for compensation. There are no pleadings as such, but by a document titled “Updated Particulars of Compensation and Penalties” dated 20 September 2019, which is to be read together with the “Applicant’s Particulars of Compensation and Penalties” dated 7 June 2018, the second applicant on its own behalf seeks compensation in the sum of $4,641,745. In addition, the applicants seek an order that the respondent compensate the second respondent’s joint-venture partner, BHP Billiton Petroleum (Bass Strait) Pty Ltd (BHP), in the sum of $3,204,206. The claims for compensation rest upon an allegation that, by reason of the alleged unprotected industrial action, there was a delay of 14 days in completing the scheduled maintenance works at the Longford plant. In general terms, the applicants’ claim is that as at 6 March 2015, which was the date on which the unprotected industrial action commenced, the scheduled restart date of the plant at Longford was 17 March 2015. The applicants allege that as a result of the unprotected industrial action, the restart date was delayed until 31 March 2015. The applicants claim that as a result of the delay, there were 14 days lost production of crude oil and natural gas liquids. The applicants claim lost revenue referrable to that 14 day period, but make allowance for the likely recovery of revenue over the expected duration of the joint venture project. The expected duration of the project is therefore a fact in issue.

4    The respondent has foreshadowed that it will put the applicants to their proof in relation to at least the following issues: (1) what industrial action was taken; (2) the claimed delay; (3) the extent to which the claimed delay was caused by unprotected industrial action organised by the respondent; and (4) the methodology for calculating the claimed losses. The respondent has foreshadowed that it proposes to rely on lay and expert evidence relating to these issues. Amongst the issues that have been foreshadowed by the respondent, it will be alleged that during the delay period there was protected industrial action that was organised by other unions, including the Electrical Trades Union. An issue may therefore arise in relation to the extent to which the claimed delay may have been caused by other factors, such as protected industrial action organised by the ETU, and other independent causes.

Mediation

5    Against that background, there have been disputes between the parties in relation to the discovery that should be made by the applicants. The affidavit material and annexures that were filed in support of the respondent’s interlocutory application comprise hundreds of pages of documents. The annexures to the affidavit material include detailed correspondence passing between the solicitors for the parties that addressed numerous requests for documents that were in dispute. The interlocutory application contained a schedule of seven pages describing the discovery that was sought, which included glossaries of defined terms that were used in the schedules. I do not say this to criticise the respondent, because precision is desirable. Rather, it is to indicate the extent of the disputation between the parties.

6    On the first return of the respondent’s interlocutory application on 17 December 2019, I referred the application to mediation, to be conducted by a Registrar of the Court. I also made an order that the solicitors for the parties with responsibility for discovery confer prior to the mediation for the purpose of narrowing or eliminating the issues in dispute. I made an order that if, following the conference between the solicitors, there remained any issues in dispute, the parties were to prepare a schedule for the Registrar identifying those issues, and providing a short summary in point form of the parties’ positions. Documents of this type are known as a “Scott Schedule”.

Approach to rulings

7    The mediation did not resolve all the disputes between the parties in relation to the respondent’s application for discovery. There remained a number of issues which require adjudication by the Court. I made orders for further Scott Schedules, the most recent of which is an updated Scott Schedule prepared by the parties on 27 February 2020. The rulings recorded in these reasons for judgment shall be referrable to the issues that the parties have identified in the most recent Scott Schedule as remaining in dispute. In the resolution of those issues, I have considered the written submissions of counsel for the parties prior to the hearing, the submissions that were advanced orally at the hearing on 14 February 2020, and the supplementary written submissions which were filed with leave of the Court following the hearing. I infer from those submissions that there have been continuing discussions to narrow the issues in dispute, and to present the material in a way that assists the Court.

8    I propose to identify each issue, and then to give a corresponding ruling. Upon publication of these reasons, I will request counsel for the parties to confer and to present orders that give effect to the rulings.

Applicable principles

9    I shall state briefly the applicable principles to which I have had regard in considering whether the applicants should make discovery of the particular documents that remain in dispute.

Particular discovery under r 20.21

10    Rule 20.21 provides –

20.21    Order for particular discovery

(1)    If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a)    whether the document or any document of that category is or has been in the second party’s control; and

(b)    if the document or category of documents has been but is no longer in the second party’s control—when it was last in the second party’s control and what became of it.

(2)    The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

11    In Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63; 201 FCR 321, Barker J undertook a very helpful analysis of the principles in play when a party seeks particular discovery under r 21.21, or non-standard discovery under r 20.15 of the Federal Court Rules. The main points which his Honour made at [31]-[39] that are relevant to this application, and which I respectfully adopt, are –

(1)    While standard discovery is limited to discovery of documents that are directly relevant to issues raised by the pleadings or in the affidavits, and is otherwise subject to the other criteria in r 20.14, the power to order particular discovery under r 20.21 is not so confined.

(2)    Accordingly, while documents that might be relevant only indirectly on the Peruvian Guano test are not discoverable when standard discovery is ordered by reference to r 20.14, it is open to the Court in making an order for particular discovery under r 20.21 to require the discovery of documents that are indirectly relevant.

(3)    An application for particular discovery under r 20.21 need not be based upon a complaint that discovery should have been given under orders of the Court for standard discovery, or non-standard discovery. It is open to a party seeking particular discovery under r 20.21 to persuade the Court that the documents should be discovered in the circumstances of the case.

(4)    Each application will depend upon its own facts and circumstances, and will be affected by the underlying policy of the rules, which is to limit the scope of discovery and to advance the overarching purpose of civil procedure in the Court as prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth).

Discovery of redacted documents

12    An issue arises between the parties concerning whether the applicants should be permitted to discover, or produce documents in a redacted form by masking parts or entire pages of documents that are claimed to be especially confidential and irrelevant. The documents in question are in the nature of financial reports and accounts which the applicants claim are commercially sensitive.

13    There is a practice in the United Kingdom whereby a party is entitled to seal up or cover up parts of a document which the party claims to be irrelevant: GE Capital Corporate Finance Group Ltd v Bankers’ Trust Co [1995] 1 WLR 172 at 174 (Hoffmann LJ) (see also, Leggatt LJ at 176-177 and Dillon LJ at 177). GE Capital was followed in Optus Communications Pty Ltd v Telstra Corporation Ltd [1995] FCA 254 (Lockhart J), and in Egglishaw v Australian Crime Commission (No 2) [2009] FCA 12; 253 ALR 354 (Besanko J). However, other views have been taken in this Court in relation to the appropriateness of redacting parts of documents that are claimed to be irrelevant. The different views have been referred to in a number of cases, including Figtree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041 at [45]-[49] (Logan J), and more recently in Gall v Domino’s Pizza Enterprises Ltd [2019] FCA 1799 at [65]-[67] (Murphy J).

14    There is recognition in the authorities that entries in registers, or minute books, may be discovered without discovery of the entire register or book. A more contemporary example is the discovery of one email in a chain, without the discovery of the entire chain of communications, at least where the emails remain in electronic form. Whether that is appropriate will depend upon the circumstances of the particular case. There are other cases where, upon application to the Court, special orders are made restricting access to discovered documents that are especially sensitive or confidential: see, for example, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39-40 (Hayne JA). To accommodate these concerns, and to balance competing interests, in patent litigation parties often agree on the formation of “confidentiality clubs”: see, for example, AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 and Lubrizol Corporation v Esso Petroleum Co Ltd [1992] 1 WLR 957. However the unilateral redaction of discoverable documents is a different issue, attracting different considerations.

15    My own disposition is that redactions of whole integrated documents should not ordinarily occur except by consent or by court order. In my view, if a document is relevant, and is therefore discoverable, then generally the whole of the document should be produced. That is so for a number of reasons. Material parts of a whole document should not ordinarily be stripped from their context. In this regard, I respectfully agree with the observations of Barker J in MG Corrosion Consultants Pty Ltd v Gilmore [2011] FCA 1514 at [12] –

I recognise that in some cases – and the minutes of a long meeting of some organisation may provide a good example – a document may contain many parts and many of them may be totally irrelevant to matters in issue in the proceeding such that redaction may easily be agreed by the parties. Ordinarily, however, it is undesirable for a party to go through a whole, apparently integrated document – for example, a letter or email – and make unilateral decisions about the relevance of certain words, sentences, or paragraphs or sections. If the party’s sensible agreement to redaction cannot be obtained – bearing in mind the obligation of parties and their lawyers to act co-operatively in litigation under s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) – then an application to the Court to rule on redaction is appropriate. If a party has acted unreasonably, their conduct may be recognised in an adverse costs order.

16    Barker J cited Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 at [98], where Logan J stated –

… save in cases where a privilege is claimed, the whole document should be produced unless there were prior agreement to the contrary from the opposing party or some prior dispensation by the court. One reason given was that the obligation was to discover the document; another given was that of loss of comprehensibility arising from too assiduous a practice of masking out.

17    In turn, Logan J cited Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 where, after reviewing a number of authorities, Sundberg J stated at [25] –

… It is inappropriate for a party unilaterally to determine the relevance of parts of otherwise discoverable documents by masking those parts. The party can make its case for masking to the Court, which if persuaded, can authorise it.

18    Experience shows that there is the opportunity for the substantial consumption of time and costs by parties engaging in disputation about discovery. That is one of the reasons why discovery in this Court occurs only with leave: see, r 20.12. Redactions within discoverable documents present another frontier for disputation. Murphy J referred to some of these considerations in Gall v Domino’s Pizza Enterprises Ltd at [65]-[67] in terms with which I respectfully agree. One would expect that compliance by parties and their lawyers with their obligations under s 37N of the Federal Court of Australia Act to act consistently with the overarching purpose referred to in s 37M has the consequence that parties will usually produce discovered documents in an unredacted form, and will not engage in unnecessary and wasteful disputation. If there are any claims for redactions, then those claims should be the subject of common-sense discussion between the solicitors for parties and, if necessary, agreement on a confidentiality regime. Agreement has occurred in this case in relation to quite a number of documents that are not the subject of the present disputes.

19    As I have mentioned, in the present case the respondent seeks a special order for particular discovery under r 20.21. I comprehend the applicants’ resistance to the discovery and production of the unredacted documents that are in dispute as an invitation to the Court to exercise its discretion so as to qualify any orders for discovery that are to be made pursuant to r 20.21, so that any obligation to make discovery is confined to the relevant documents in a redacted form. Understood in this way, this is not a case where there is an existing requirement to make discovery and produce documents that the applicants unilaterally seek to avoid by producing them in a redacted form.

The documents in dispute

1.    The work packs

20    The respondent claims that work packs were prepared for each job during the 2015 maintenance shutdown at the Longford plant, and that they are relevant and should be discovered. The applicants claim that there are no work packs available to produce. In these circumstances, there is agreement that the appropriate course is that the applicants should file and serve an affidavit directed to these documents, containing the information that would be required by the rules, including in particular r 20.21(1)(b).

2.    The Isolation Confirmation Certificates

21    During the shutdown, it was necessary to isolate components of the plant in order to undertake the planned maintenance. It is unnecessary that I describe that process in detail. Much of the detail is referred to in the reasons of Jessup J in Esso Australia Pty Ltd v The Australian Workers’ Union [2015] FCA 758 at [10]-[28]. Jessup J referred to the applicants’ Isolation Confirmation Certificates (ICCs) for the purpose of the identification of what was involved in “de-isolations”, and whether the industrial action that the respondent organised fell within the terms of the notice of intention to take protected industrial action dated 3 February 2015 that the respondent gave to the applicants.

22    The respondent claims that the ICCs should be discovered because they will record the times during the shutdown when various components of the Longford plant that were the subject of maintenance activities were the subject of attention, including when various valves were opened and closed. The ICCs are contemporary business records of the applicants, in the form of electronic artefacts, which appear to evidence when these events occurred. The respondent claims that these documents are relevant, because they may assist it in constructing a timeline as to material events, and that they are also relevant to evaluating the facts which are alleged by the applicants through their witnesses.

23    For their part, the applicants claim that the relevant timeline is evidenced by other documents which their witnesses have produced to their affidavits, including de-isolation schedules that were prepared during the shutdown, contemporaneous daily reports, and other material. The applicants also claim that the ICCs will not assist the respondent in formulating a timeline of events.

24    I find the arguments of the applicants to resist discovery of the ICCs to be unpersuasive. The case which the applicants advance by their particulars will require proof of a past hypothetical sequence of events, that is, proof of the course of the scheduled maintenance but for the unprotected industrial action organised by the respondent. The applicants have produced what appear on their face to be business records which will form part of the body of circumstantial evidence upon which they will rely to establish their claims. However, it does not follow that the respondent is not entitled to discovery of other business records of the applicants that may bear upon the circumstantial facts that contribute to an appraisal of the entire picture. The respondent is entitled to investigate and test the applicants’ claims. To do this is not to engage in “fishing”, as the applicants claimed in their submissions. The applicants should make discovery of the ICCs that are relevant to the period in dispute.

3.    Pre-2018 production volume forecasts

25    The next issue is whether the applicants should make discovery of their forecasts for production volumes that were prepared from 2014 to 2018. The position is that one of the applicants’ witnesses has proposed a formulation for the calculation of loss which is premised upon forecast production volumes to a particular end point, referred to as the “planned end of field life”, which has been based upon forecasts that were prepared in 2018. The respondent’s argument is that forecasts, of their nature, may be volatile. The respondent wishes to know what forecasts were made in the preceding years so as to assess the degree of volatility. For their part, the applicants argue that the 2018 forecasts are the forecasts that are relied upon, and that earlier forecasts are not relevant, as they have been superseded.

26    I do not accept the applicants’ submissions. It is notorious that some financial and economic forecasting is subject to volatility. It is legitimate for the respondent to be able to investigate whether or not the applicants’ forecasting has been stable, or variable, which may be relevant to whether or not and, if so to what extent, the 2018 forecasts are reliable. This may have significance if the witnesses who rely on the 2018 forecasts did not have responsibility for their preparation. The applicants should make discovery of the relevant forecasts for the earlier years.

4.    Stewardship Reports

27    The parties are unable to agree as to whether the applicants should be permitted to produce 69 periodic stewardship reports with substantial parts of them redacted. In order to assist in the resolution of this dispute, the applicants made an unredacted copy of a sample document available to the respondent’s solicitors and counsel, so as to enable them to evaluate the claims for redaction, and to make submissions to the Court. This was a sensible course, and resulted in some concessions by the respondent, which narrowed the ambit of the dispute.

28    Counsel for the respondent accepted that those parts of the stewardship reports dealing with occupational health and safety, environmental, and like issues, are irrelevant, and may be redacted. Otherwise, the stewardship reports contain data relating to gross volumes of production, operating expenditure, capital expenditure, and abandonment expenditure. The applicants made detailed submissions claiming that these data are irrelevant, essentially because they are irrelevant to the way in which the applicants have calculated their claimed losses.

29    As a general observation, the respondent is entitled to investigate whether the assumptions underlying the applicants’ calculations may be challenged, and it is entitled to investigate whether the applicants’ methodology is sound. The fact that the applicants’ witnesses, and their expert, have formulated their opinions on particular assumptions adopted by the applicants, does not dictate the ambit of relevance for the purposes of discovery. However, as this is an application for particular discovery, where there is at least some onus on the respondent to demonstrate relevance, and where the applicants have raised concerns about the sensitivity of their confidential financial data, it is necessary to give attention to the relevance of the contested components of the stewardship reports.

Gross volumes

30    The applicants submitted that data relating to gross volumes that appear on page 2 of the stewardship report have already been provided to the respondent in the form of other documents, and therefore they should not have to be discovered. I do not accept that submission. The data on page 2 of the stewardship report have been presented as “key metrics”, and in that form they give context to other data on page 2, namely the operating expenditure, which I address below.

Operating expenditure

31    It would appear that data relating to operating expenditure may be relevant to the way in which the applicants have formulated their claim. Both past and projected operating expenditure may be relevant to the calculation of the value of recovered production. Operating expenditure is referred to in the applicants’ updated particulars of loss, and adjusted cash operating expenditure appears to form part of the calculations of loss in the applicants’ affidavit material filed for the purposes of the hearing. The expert retained by the applicants, Mr Smith, expresses an opinion in relation to operating expenditure and annexes a 2018 five-year forecast of operating expenditure to his report. The applicants submitted that the 2019 data are irrelevant because they did not form part of the calculations of loss. I do not accept that submission for the reason that the 2019 data and budgeted operating expenditure may be relevant to an evaluation of the claims that have been made. It is at least conceivable, that future operating expenditure may have a bearing on the value of recovered production. The fact that the applicants’ expert has not taken it into account is not determinative, and may be challenged. The information in the stewardship reports relating to operating expenditure should be discovered. There should be no redactions of incidental comments relating to operating expenditure.

Capital expenditure and abandonment expenditure

32    The applicants claim that the capital expenditure shown in the stewardship reports relates largely to gas production. Assuming that to be the case, it is not clear on the face of the reports that the expenditure relates largely to gas production. In any event, the applicants also claim that capital expenditure and abandonment expenditure have not been used to formulate their claim, and are therefore irrelevant. For its part, the respondent claims that capital expenditure is relevant to the question whether the forecasts concerning production to the project’s end of life are accurate. However, beyond that assertion, the respondent has not developed any argument that explains the relevance of capital or abandonment expenditure in a way that I find convincing. It might be different if there were expert opinion explaining the relevance of these items to the preparation of the respondent’s case. I am therefore not persuaded that the items in the stewardship reports relating to capital expenditure or abandonment expenditure are relevant. It follows that the line entries on page 2, and the whole of pages 9 and 10 relating to capital and abandonment expenditure need not be discovered.

Page 11 – title page

33    Page 11 of the stewardship report should be discovered for context.

5.    Redactions to the Work Plan and Budget Forecasts

34    The applicants have proposed that they discover the Work Program and Budget documents for 2018 and 2019 in a redacted form. Again, the applicants have made available unredacted copies to the respondent’s solicitors and counsel so as to enable them to evaluate the claims for redactions, and to make submissions to the Court. Counsel for the respondent accepted that insofar as the documents relate to occupational health and safety, environmental, and like issues, they may be redacted.

35    The 2018 Work Program and Budget document was used by the respondent as the representative document for the purpose of its submissions. The document is 65 pages in length, and is divided into a number of sections that are separated by title pages. The parties made written submissions addressing individual pages of the document that are in dispute.

36    The respondent submitted that the Work Program and Budget document had been provided by the applicants to their expert witness, and for this reason alone it should be discovered in full. I do not understand the expert report to say that the document had been provided in full. Rather, I understand the report as recording that five year forecasts were provided. The applicants confirmed in submissions that only select pages were provided to the expert.

Pages 1 and 2

37    The applicants do not accept that the covering letter of the document, or the minutes of a meeting referred to in the letter which are immediately attached, are relevant to the provenance of the document. On this issue, the respondent made the following submission at [25] of its written submissions dated 20 February 2020 –

Pages 1-2 are relevant as they explain the provenance of the financial information contained in the document. In short, it is clear that the information contained in the WP&B document is derived from the joint venture’s “databook” (see the reference to attachments 3 & 5 at the foot of the letter on p 1); the information was discussed and approved at a meeting of executives on 23 October 2018 (see minutes of meeting appearing at p 2), and following the meeting, Esso is formally seeking BHP’s endorsement of the figures (see the covering letter). This information is relevant as it goes to the accuracy of the data presented.

38    In response, the applicants made the following submission at [26] of their written submissions dated 26 February 2020 –

The Respondent mischaracterises the information contained on Page 2. Page 2 does not show that the information contained in the 2018 WP&B document was discussed and approved at a meeting of executives. Rather, Page 2 shows a list of action items relating to a meeting on 23 October 2018. …

39    I do not accept the applicants’ submissions on this topic. The respondent has not mischaracterised the information. In [25] of its submissions, the respondent referred to pages 1 and 2 of the document. When those pages are read together, it is tolerably clear that they support an inference that the information was discussed and approved at a meeting of executives on 23 October 2018, as the respondent submitted. Further, the covering letter and minutes indicate the provenance of the document in a more complete way than the notations that appear on individual pages of the document on which the applicants relied. Otherwise, the respondent made no submission that the figures shown in the covering letter are relevant, and they may be redacted by the applicants.

Title sheets

40    The Work Program and Budget document includes title sheets at pages 3, 10, 15, 17, 20, 25, 30, 32 and 34. The applicants do not oppose discovery of the title sheets.

Page 4

41    The plan overview should be discovered.

Page 5

42    I am not persuaded that there is anything on page 5 that is relevant to the applicants’ claim for lost production of crude and natural gas liquids.

Pages 11 to 14

43    The respondent has not persuaded me that the pages relating to the “integrity backlog” should be discovered, save that on page 13 the heading, and the graph relating to “Gippsland C&C Downtime” should be discovered.

Pages 16 and 35

44    Discovery of these pages appears to be largely uncontentious, save that the applicants claim that the abandonment expenses appearing on these pages are not relevant. I have previously stated that the respondent has not persuaded me that abandonment expenditure is relevant to the applicants’ claim for compensation, and therefore those data may be redacted.

Pages 18 to 19

45    Pages 18 to 19 should be discovered. It is not obvious that the outlook for liquids is confined to new platforms, because there is a substantial component that is attributed to “base”. The applicants submit that the developments relate “in large part” to gas production, from which I infer that some developments relate to liquids. I am therefore not persuaded to permit these pages to be redacted.

Page 22

46    The applicants agree to discover this page.

Page 23

47    This page appears to relate to gas production, and the respondent has not persuaded me that it is relevant to the applicants’ claim.

Pages 26 to 29

48    These pages relate to operating expenditure, and I consider that they should be discovered. The pages include data for operating expenditure forecasts beyond 2019. I do not accept that data relating to budgeted operating expenditure may not be relevant because the applicants have not used them in the calculation of their claims.

Page 31

49    Page 33 appears to relate to forecasts of staffing levels. I am not persuaded that it is relevant to the applicants’ claim.

Page 33

50    This page relates to budgeted capital expenditure. The respondent has not persuaded me that budgeted capital expenditure is relevant to the applicants’ claim.

Page 36

51    The applicants should discover page 36 to the extent that it identifies budgeted operating expenditure. Otherwise, it may be redacted.

Page 37

52    The applicants should discover page 37 to the extent that it relates to actual and budgeted production volumes and operating expenditure. Otherwise, it may be redacted.

Pages 44 and 47

53    Pages 44 and 47 appear to relate to production and budgeted sales of gas. The respondent has not persuaded me that the actual or budgeted data on these pages are relevant to the applicants’ claim.

Pages 49 to 53

54    These pages appear to relate to capital expenditure and, as previously indicated, the respondent has not persuaded me that capital expenditure is relevant to the applicants’ claim.

Pages 54 to 57

55    These pages appear to relate to actual and budgeted operating expenditure, which I consider should be discovered.

Pages 58 to 59

56    These pages appear to relate to abandonment expenditure. The respondent has not persuaded me that they should be discovered.

Page 60

57    This page appears to relate to budgeted staffing levels, and I am not persuaded that it is relevant.

Pages 61 to 65

58    These pages appear to relate to a separate oil and gas field named “Blackback”. The respondent has not persuaded me that there is anything of relevance in these pages.

59    The applicants should make discovery of the Work Program and Budget documents, redacting those parts relating to occupational health and safety, environmental and like issues, and otherwise in conformity with the rulings on the 2018 sample document set out above. I expect that the solicitors and counsel for parties will reach agreement in relation to any necessary regime to protect the confidentiality of the information in these documents.

6.    Excel, or other software files

60    On the material currently available, I am not persuaded to order the applicants to make discovery of the Excel, or other data files that have been sought. These files are said to have been attached to the applicants’ Work Program and Budget documents. The respondent has not persuaded me that the discovery of these documents will facilitate the just resolution of the proceeding for the purpose of r 20.11. In particular, in the absence of evidence, I am not persuaded that the data in the source documents are themselves relevant, or reasonably necessary for the respondent to prepare its case.

7.    BHP Documents

61    Amongst the affidavits that the applicants have filed for the purposes of the hearing are affidavits of employees of companies related to BHP. The apparent purpose of those affidavits is to provide an evidentiary foundation for the losses that are the subject of the applicants’ claim for orders under the Fair Work Act that the respondent pay compensation to BHP. The respondent has sought discovery of a number of documents, or categories of documents, relating to the claimed losses of BHP. In relation to those documents, the response of the applicants is that the documents are not in their control, and accordingly will not be discovered. In an affidavit of the applicants’ solicitor, Mr Trindade, dated 5 February 2020, Mr Trindade deposed at [48] to his instructions that the applicants would not seek the documents from BHP as they were concerned to avoid gaining access to any information that might raise concerns by the Australian Competition and Consumer Commission. During the course of the hearing, senior counsel for the applicants confirmed that the applicants do not wish to seek the documents from BHP. Notwithstanding this position, it appears that the solicitors for the applicants have obtained instructions from BHP so as to enable them to prepare and file the evidence relating to the losses claimed on behalf of BHP. Senior counsel for the applicants informed the Court that the provision of these instructions was the subject of confidentiality arrangements. In the most recent Scott Schedule filed on behalf of the parties dated 27 February 2020 there is information from which I infer that the applicants have since requested some of the documents sought by the respondent from BHP, and that BHP has declined to provide the documents to the applicants or their solicitors.

62    The respondent submits that, in these circumstances, the Court should make an order of the kind made in Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Company (1993) 46 FCR 428, and to direct the applicants to take steps to obtain access to and to discover the documents sought by the respondent that are within the control of BHP. In oral submissions, senior counsel for the respondent put the application as being for an order that BHP produce documents to the applicants, and that the applicants would then make discovery of the documents to the respondent. I do not think senior counsel for the respondent intended to go so far as to suggest that the Court should make an order against BHP in its absence. I shall therefore treat the respondent’s application as including the lesser alternative of ordering that the applicants are to request that BHP produce documents to them.

63    There are three related reasons why I shall not take the course advocated by the respondent. First, in Sabre Corporation, the two connected parties were an American manufacturer, and its exclusive Australian distributor of hair care products. In these circumstances, Lockhart J was satisfied that there was a real likelihood that the Australian distributor would be given access to relevant documents if it requested them from the American manufacturer. In this case, I am not satisfied of a likelihood that the documents would be produced by BHP to the applicants absent an obligation to do so. While the second applicant and BHP are joint venture partners in relation to the extraction of oil and gas from Bass Strait, they are competitors in relation to the marketing of crude and natural gas liquids. The applicants are evidently resistant to facilitating the discovery of documents that are in the control of BHP. The second reason is that BHP, which is amenable to the Court’s jurisdiction, is not currently before the Court. I am not prepared to make orders that the applicants request documents from BHP in circumstances where such orders may carry with them an assumption that the documents should be produced by BHP, when the Court has not made any such determination. The third reason is that I am of the opinion that to seek discovery of documents in the indirect way that the respondent proposes, is more likely than not to lead to additional disputation and delay. The respondent’s proposal would not involve the Court having any control over what documents BHP ought to produce, if any. If the respondent wishes to pursue discovery or production of documents that are in the control of BHP, then it should do so directly. In making this observation, I wish to state clearly that I have not formed any view about whether or not, if an application were made, BHP should be required to discover or produce the documents that are sought by the respondent. As I have said, BHP is not before the Court, and it has not been heard. There has been no occasion for it to be heard, because the respondent has chosen not to seek documents from it directly.

Conclusions

64    I will make orders that counsel confer and present draft orders to the Court that give effect to these reasons, and provide for any further directions that are necessary.

Associate:    

Dated:    11 March 2020