Federal Court of Australia

INPEX Operations Australia Pty Ltd v AkzoNobel NV (No 5) [2025] FCA 503

ORDERS

THE COURT ORDERS THAT:

1.    In respect of the notice to produce dated 11 April 2025 and issued to the applicants by the respondents, paragraphs 2(c), 2(d), 2(e), 2(g), 2(h), 2(i) and 3 be set aside.

2.    The time for compliance with the paragraphs of the notice to produce that have not been set aside by order 1 be extended to 5.00 pm AWST on Wednesday 21 May 2025 with liberty to apply.

3.    The costs of the applicants’ interlocutory application lodged on 24 April 2025 be reserved.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The final day listed for this trial was Monday, 12 May 2025. There have been over 47 sitting days. The trial was described in the closing days by Mr B Dharmananda SC for the respondents as being 'complex, massive and raising a multitude of issues'. That is a fair description.

2    I am asked to set aside a Notice to produce issued by ANIP to INPEX in WAD 162 of 2021. This trial has proceeded as a concurrent trial of both WAD 162 of 2021 (claim by INPEX) and WAD 448 of 2017 (claim by JKC). As in previous interlocutory judgments, I will refer generally to the applicants as INPEX or JKC as applicable, and to the respondents as ANIP. I informed the parties on the morning of 12 May 2025 of the view I had reached on the application and indicated I would publish these reasons as soon as possible.

Introductory matters

3    Save for three matters, the evidence in this proceeding concluded on 9 September 2024, when one of the expert witnesses, Mr Moore, gave further oral evidence. Oral closing submissions were heard between 19 and 29 August 2024, with written closing submissions filed by 25 October 2024.

4    The first of the three matters was a special hearing for the purpose of cross-examination of witnesses in relation to discovery which was conducted on 30 October 2024, and that evidence has been treated as evidence in the trial.

5    The second matter was a hearing conducted on 12, 13 and 14 November 2024 to take evidence of a witness (Mr Jarvis) whose evidence was relevant to the trial and also to an inquiry on quantum that was referred to a referee under s 37P(2) and s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28 of the Federal Court Rules 2011 (Cth). On those dates the Court sat with the referee and the evidence of Mr Jarvis was taken to be evidence in the trial and for the purpose of the reference.

6    The third matter is that the hearing dates of 6 May 2025 to 12 May 2025 (May hearing) were set aside long ago for submissions as to whether the referee's reports on his inquiry, which were published on 28 February 2025, were to be adopted or rejected in part or in full, or to consider whether other orders might flow from receipt of the reports (adoption application).

7    In the end the time allocated for the May hearing to deal with the reports and quantum issues that might arise from them was eaten into by supervening events. For example, the time was used to hear submissions in relation to a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth) filed by ANIP. The parties also agreed that further closing submissions on identified topics might be made during that period. None of those steps involved or permitted the re-opening of the respective cases in the proceedings insofar as the tender of new evidence was concerned (absent consent to such tender).

8    So much was confirmed by the approach to attempts by the respective parties during the May hearing to rely on certain evidence not previously tendered. For example, ANIP sought to make additional submissions on a statutory limitation point it pursues against INPEX. That was a topic on which the parties had closed and made closing submissions and it was accepted during the hearing that ANIP was taken to be applying to re-open its case in that regard and was seeking to rely on new evidence and submissions. Accordingly, I heard counsel on that application and as suggested by INPEX, its determination is likely to be addressed in the context of the ultimate reasons.

9    Further, ANIP opposed the proposed tender by INPEX of new evidence for the purpose of the adoption application. This gave rise to some discussion about the basis upon which the Court should have regard to evidence in the reference and whether leave was required by INPEX to rely on the proposed additional documents. It seemed to be accepted by INPEX that leave would be required and the matter was argued on that basis. Further, it was confirmed that to the extent identified documents were in evidence in the reference and relied upon by the parties for the purpose of the adoption application, the Court could and should have regard to them but only for that purpose. That is, they would become evidence in the adoption application, which is interlocutory in nature.

10    Against that backdrop INPEX asks that it be relieved from compliance with the Notice.

11    More particularly, INPEX seeks dispensation from compliance with r 30.28(3) of the Federal Court Rules in relation to the Notice. The Notice is dated 11 April 2025. INPEX relies on r 1.32 and r 1.34 of the Federal Court Rules and s 23 of the Federal Court of Australia Act. The parties asked that I deal with the application on the papers in the circumstances, and the final submissions were received by Chambers on 8 May 2025.

Insurance Proceedings

12    The Notice seeks production of 14 documents filed by INPEX in proceedings that INPEX has brought against various insurers in the Supreme Court of Western Australia (Insurance Proceedings). Neither ANIP nor JKC are parties to those proceedings. The documents were filed in the Insurance Proceedings on 28 February 2025, so after the closing of ANIP's case in this proceeding (subject to the matters referred to above).

13    The proceedings in this Court centre on the use and failure of the coating product referred to as I228. The Insurance Proceedings are related but different. In October 2023 I refused an application by ANIP to transfer both WAD 448 of 2017 and WAD 162 of 2021 to the Western Australian Supreme Court: JKC Australia LNG Pty Ltd v AkzoNobel NV (No 5) [2023] FCA 1248 (transfer reasons). For convenience, I extract from the transfer reasons a summary of the Insurance Proceedings:

[20]    INPEX is the named insured under an 'Onshore Construction Risks - Material Damage - Project Insurance Policy' (CAR Policy) in respect of the design, fabrication, construction, erection, testing, and commissioning of the Ichthys Onshore Project. JKC is also a named insured within the definition of that policy.

[21]    In May 2020 JKC and INPEX commenced proceedings in the Supreme Court of Western Australia relating to the CAR Policy. The defendants in those proceedings are insurers under the policy, being a syndicate of some 25 named insurers. In their indorsed writs, JKC and INPEX claim from each of the defendants, in specified proportions, an indemnity against damage to insured property in relation to the specified coating and insulation systems on piping and equipment used in the Ichthys Onshore Project.

[22]    INPEX was substituted as the plaintiff in the proceedings commenced by JKC, following execution of a deed of assignment. The two actions were then consolidated: JKC Australia LNG Pty Ltd v AIG Australia Ltd [2021] WASC 471.

[23]    In July 2020 JKC issued proceedings in the Supreme Court under an 'Erection All Risks and Difference in Conditions Insurance Policy'. The single defendant in those proceedings is Mitsui Sumitomo Insurance Company Ltd. It appears that INPEX was later substituted as the plaintiff in those proceedings, following execution of the deed of assignment.

[24]    In Inpex Operations Australia Pty Ltd v AIG Australia Ltd [No 2], Lundberg J attached a list of proposed substantive issues to be resolved in the Insurance Proceedings. These include issues specific to: the terms of the purported assignment as between INPEX and JKC; the construction of the insurance policies; the scope and application of exclusion clauses (said to be central to the determination of the proceedings); the effect of statutory time bars; an assessment of whether damage is fortuitous; an assessment of whether and when damage occurred having regard to the policies, the different components of the insured property and the use of I228 and other materials; the quantification of damages not excluded by the policies; and the amount payable under the policies with respect to each item of insured property.

14    I note two other matters. The Insurance Proceedings include a claim about the use of flexible elastomeric foam (FEF) insulation, used to surround the I228 coating on selected areas. The apparent need and cost to remove FEF from parts of the plant to access the underlying I228 for remediation purposes was referred to in the transfer reasons at [72] and was said to be relevant to the damages assessment exercise. Since that time INPEX has refined and amended its claim in the Insurance Proceedings concerning the FEF system and the circumstances of FEF repair or replacement. In particular, I was informed that INPEX amended its pleading in August 2024 to allege that: (a) prior to RFSU (ready for start up), it caused some FEF to be replaced or repaired; and (b) since RFSU, it has limited, and intends to continue to limit, replacement or repair relating to the FEF System to circumstances where I228 (or I228HS) is repaired or replaced, and it is necessary to remove the FEF system for that purpose. ANIP was provided with access to the amended pleadings.

15    Further, I observe that ANIP's pleaded cases in the proceedings in this Court were amended in January 2024, after the transfer reasons were published, to introduce what came to be referred to by the parties as the 'cure defence' and by pleading allegations based on JKC's use of FEF. Self-evidently the transfer reasons were written on the basis of the pleaded cases and other information disclosed at the time.

The Notice

16    The Notice seeks the production of the following documents filed in the Insurance Proceedings:

(a)    summaries of expert reports of each of Mr Moore and Mr McCormick concerning the FEF insulation system;

(b)    witness statements from persons who INPEX called as witnesses in this proceeding (being Mr Turner, Mr Fernandes, Mr Viney, Mr Curtis, Mr Holmes, Mr Horikiri, Mr Houben, Mr Natarajan and Mr Scott); and

(c)    witness statements from persons who INPEX did not call in this proceeding (being Mr Courtney and Mr Sakai).

17    The Notice also seeks production of an affidavit of a Japanese/English translator, Mr Doyle.

18    None of those documents are in evidence in the Insurance Proceedings. They have simply been filed.

19    INPEX raised four contentions as to why it should be relieved from compliance with the Notice:

(a)    discovery of such documents was previously sought and refused and so the Notice is an attempt to circumvent that refusal;

(b)    ANIP has not established any legitimate forensic purpose for seeking the documents;

(c)    it is too late; and

(d)    ANIP has not explained the limits on the use it would make of those documents having regard to the fact they are not in evidence.

Principles

20    A notice to produce served pursuant to r 30.28 has the same coercive effect as a subpoena to produce documents. The principles relevant to the validity of such a notice were summarised by Collier J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 at [6]. Those principles include that the party which has issued a notice to produce bears the onus of establishing that the documents the subject of the notice are sufficiently relevant to justify production.

21    How that question of apparent relevance might be framed has been considered in a number of cases: whether the documents sought are of 'apparent relevance to the issues' in the proceedings (National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385); whether the documents sought are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case' (Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927); and whether the material 'could possibly throw light on the issues in the main case' (Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103).

22    The Full Court more recently considered this question in the context of a subpoena in Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185 (Wheelahan, Anderson and Jackman JJ), confirming that the fundamental principle is that the party issuing a subpoena must demonstrate that the subpoena has a legitimate forensic purpose, and that it may be set aside if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the case (at [37]). The Full Court held that there was no error by the primary judge in applying the principle of whether the documents sought have an apparent relevance in the sense that they could reasonably (in the sense of 'on the cards') throw light on the issues (at [39]). Further, the Full Court stated that such principle was consistent with the decision of the New South Wales Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 which it said provided authority for the following propositions (at [38]):

(a)    the language of 'tests' should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose: Bell P at [60]-[61], with whom McCallum JA agreed at [98];

(b)    it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena: Bell P at [57]-[58], Brereton JA at [86] and [96], McCallum JA at [98] and [100];

(c)    it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive: Bell P at [57], McCallum JA at [98] and [100];

(d)    put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case: Brereton JA at [89], with whom McCallum JA agreed at [100]; and

(e)    it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist: Bell P at [65], with whom McCallum JA agreed at [98].

23    The decision in Seven Network confirmed rather than changed the underlying principles: Rathner (Liquidator), in the matter of PE Capital Nominees Pty Ltd (In liq) v Runner Investment Limited (No 2) [2024] FCA 276 at [28] (McEvoy J).

24    Further matters referred to by Collier J in BHP Coal at [6] that might be relevant to setting aside a notice include the timing of the issue and service of the notice; whether it is being used as an alternative to an application for discovery or for further and better discovery; and whether it is simply being used to fish for information and is speculative.

25    Finally, but importantly, as observed by Thawley J in FUD18 v Minister for Home Affairs [2019] FCA 1858 at [24]:

The question whether the documents are sufficiently relevant to justify production is not whether the documents sought under the Notice to Produce are admissible or will be admitted into evidence. The question has been framed as whether the documents sought are of 'apparent relevance to the issues' in the proceedings …

26    INPEX accepts that the admissibility of any documents cannot be determined at this juncture, but referred to the statement in Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622; (2011) 195 FCR 43 at [41] (Bromberg J) to the effect that the likelihood of the content of documents being available as admissible evidence is to be properly considered as part of the evaluation of whether a legitimate forensic purpose for production of the documents is established. I accept as a general proposition that might be so, but where it is clear that admissibility is highly unlikely, broader issues of abuse of process would in any event come into play. In the end the principal task is to assess the question of apparent relevance, as discussed in the above authorities.

First contention – relevance of previous position on discovery

27    The potential for documents filed in the Insurance Proceedings to be brought into these proceedings in some manner was foreshadowed by a discovery request in September 2022, in which ANIP sought discovery of any document filed in other proceedings directly relevant to the alleged failure and rectification of I228 issues raised by the pleadings.

28    This request was one of seven categories the subject of my decision in INPEX Operations Australia Pty Ltd v AkzoNobel NV [2023] FCA 382 (published on 26 April 2023, more than a year prior to trial). INPEX agreed to discover documents from resolved third party proceedings that were responsive to the category and responsive pleadings from ongoing and future third-party proceedings. However, I otherwise refused ANIP's application for discovery of the category as requested at the time, stating:

[65]    It appears from their submissions that the respondents consider the requested documents from other proceedings are relevant because they might contain admissions as to the applicants' knowledge, as to JKC's status as a concurrent wrongdoer, or as to other aspects of this proceeding. I note that the request falls generally within the section of the Redfern schedule that refers to 'alleged loss'.

…

[69]    At present, the respondents have not satisfied me that the discovery they seek, presumably on a rolling basis, of any future documents will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible … The proffered pleadings relating to ongoing and future matters should reveal more specifically the allegations made in them as to the failure and subsequent rectification of I228 and may open up for legitimate consideration the question of whether additional documents relating to those ongoing proceedings should be discovered in this proceeding. The potential remains to consider that question further in due course by a renewed application and with closer consideration of any forensic relevance that identified documents may have. But I am not satisfied that discovery should be ordered at this time, other than in the terms proffered by the applicants.

29    In short, at the time of those reasons I left this particular category of discovery open to be pursued further by ANIP if it wished to do so on a more refined and developed basis.

30    For completeness, in a separate application I ordered (in effect) that JKC was obliged to produce certain documents in a related arbitration to ANIP in response to a notice to produce issued shortly before this trial commenced: JKC Australia LNG Pty Ltd v AkzoNobel NV (No 7) [2024] FCA 723. Those circumstances were unusual and reference to that decision does not direct any conclusion that the Notice now issued to INPEX in different circumstances should stand.

31    INPEX submitted that the Notice seeks to circumvent the discovery process and the earlier ruling. It says that it has made discovery in relation to the insulation issues and that ANIP had the benefit of that discovery for the purpose of trial. It submitted that it was open to ANIP to bring a further discovery application as foreshadowed in the April 2023 ruling but it did not do so at an appropriate juncture, and it is now too late.

32    One difficulty with this argument is that the documents the subject of the Notice were not filed in the Insurance Proceedings until 28 February 2025. The solicitors' correspondence in evidence indicates that ANIP requested access to the documents on 17 March 2025, a week after it was informed that the summaries and statements had been filed. Communications then followed but the Court was not aware of the developments until 11 April 2025. The interlocutory application was filed on 24 April 2025. Despite some attempts, it was not possible to accommodate submissions and a hearing of that application prior to the May hearing, having regard to the enormous amount of work that was being undertaken in preparation for that hearing and the Court's prior competing commitments.

33    ANIP submitted that if the issue is centred on the choice to seek production by the Notice rather than by bringing a discovery application, it will proceed to bring a discovery application. I am not sure that submission assists at this stage. The Notice has been issued and the application must be determined.

34    I consider that the previous discovery ruling does not operate to deny ANIP the step taken of issuing the Notice. That discovery ruling may have taken on greater significance if the requested documents had been filed at an earlier time, but that is not the case.

Second contention – whether legitimate forensic purpose

35    INPEX fairly submitted that ANIP's general statements in communications between the respective solicitors about overlap between the two proceedings is insufficiently precise to identify a legitimate purpose. Further, some of ANIP's communications appeared to assume that if documents were produced in response to the Notice it could and would simply tender them in this proceeding, without any regard to the need to seek leave to re-open, or to otherwise seek leave.

36    However, by the time of ANIP's written submissions in response to the interlocutory application, it had sought to develop its arguments as to the forensic purpose of the Notice. It submitted that the legitimate forensic purpose relates to two issues, one being what was described as the insulation apportionment defence, and the other being a limitation point as to the timing of the identification of issues with the I228.

37    As to the insulation apportionment defence, ANIP submitted:

INPEX should not be permitted to run inconsistent cases and rely on inconsistent evidence in this proceeding and the insurance proceedings. Where INPEX refuses to tell the respondents or this Court what it is telling the Supreme Court via sworn evidence about defective insulation, but where INPEX argues that the respondents cannot obtain apportionment for defective insulation, the correct inference is that INPEX fears this Court finding out what those witnesses have said on issues relevant to the respondents' apportionment defence.

38    I do not accept that INPEX is 'refusing' to tell this Court what is being told in the Supreme Court. Nor are the materials in the Supreme Court 'sworn evidence'. The respective cases are not the same, as is apparent from the introductory remarks above. However, there is some overlap in the subject matter of some allegations, and INPEX has never denied as much, even on the transfer application. INPEX's position, as explained in this Court, is that the pleaded cases in this proceeding and in the Insurance Proceedings, insofar as they intersect, are consistent. I also note that the insurers who are involved in the Insurance Proceedings have observed the proceedings in this Court. There should be no surprises for the insurers as to how the case in this Court has been run.

39    Mr Moore and Mr McCormick were called as experts in this Court but not on the issue of insulation. INPEX's position is that it does not bear the onus in this Court on that issue. It follows, INPEX asserts, that there is no inconsistency on the face of their respective reports in this proceeding as against those filed in the Insurance Proceedings. ANIP called a witness who was purportedly an expert witness on insulation, but his evidence was severely undermined under cross-examination by Mr Breakspear SC on behalf of INPEX, and ANIP sensibly withdrew any reliance on that particular witness and his report.

40    However, the need to remove and replace FEF insulation and the likely cost (referred to as the defects in insulation design issue) is a pleaded issue in the matter before me by way of ANIP's defence to INPEX's claim, as a cross-claim against JKC in the INPEX proceeding and as a contributory negligence defence in the JKC proceeding.

41    In the Insurance Proceedings, INPEX pleads that a mastic used in the FEF system was unsuitable as it was prone to degradation in the environmental conditions, and that by reason of the unsuitability of the mastic, the FEF system was not suitable for its intended use to provide insulation to selected I228-coated piping and equipment.

42    INPEX does not allege in this proceeding or the Insurance Proceedings that the large-scale removal and replacement of FEF on the project would be reasonably required for the safe operation of the plant in the absence of the I228 issues. In this proceeding and the Insurance Proceedings, INPEX has pleaded that post-RFSU, INPEX has limited, and intends to limit, the repair and replacement of FEF to circumstances where I228 is repaired and replaced, and it is necessary to remove the FEF system for that purpose. Evidence was given by Mr Jarvis and Mr Turner on this issue in this Court. INPEX submitted that there is no inconsistency and so there is no reason to conclude that the evidence in the Insurance Proceedings will add to the evidence that the Court has heard in this proceeding. INPEX submitted that insofar as quantum and insulation is concerned, the Insurance Proceedings raise a different cause of action, focusing on a codified meaning of damage and amounts payable under settlement provisions within the relevant insurance policies.

43    As to the limitation period point, the different positions of the parties have been well-aired during the trial and closing submissions.

44    INPEX's claim is for economic loss. On INPEX's case, it submitted that time ran on its claims from the point in time at which it was objectively manifest that I228 was unsuitable for use on the project, being the point in time that it could have discovered that fact by reasonable diligence. As a matter of fact, it submitted, it was not manifest that I228 was unsuitable for use until after 8 July 2015 (the parties agree that if INPEX's cause of action accrued before 8 July 2015 it is time barred).

45    ANIP submitted that INPEX's claim is properly characterised as one for damage to property, and that the cause of action accrued on the first occurrence of physical damage. ANIP seeks in its closing submissions to run a case that degradation of the I228 coating is equivalent to 'physical damage' and that physical damage occurred as early as the time that there was 'initial degradation', being pre-2015 and when relevant modules were in the module fabrication yards (MFYs), prior to being transported to Darwin for use on the project.

46    Extensive lay evidence was given by INPEX in this proceeding about activities at the MFYs. Mr Moore and Mr McCormick gave expert evidence about, relevantly, the nature of microscopic changes in I228 following its application. ANIP cross-examined INPEX's witnesses.

47    Having regard to those matters, I turn to the witness statements the subject of the Notice. As noted at [16] above, there are three categories.

48    As to the first category, ANIP seeks production of summaries of reports prepared by Mr Moore and Mr McCormick in the Insurance Proceedings about insulation. Their reports, tendered as independent experts' reports in the proceeding before me, related to the properties of I228 and the cause of its failure. However, in relation to the environment for I228 under insulation there was some (very) limited questioning of Mr McCormick and some more substantial questioning of Mr Moore. Assuming, as INPEX submitted, that the I228 and insulation cases in this Court are not inconsistent with its cases in the Insurance Proceedings, then such lack of inconsistency does not mean of itself that the evidence of Mr Moore and Mr McCormick in their summaries filed in the Insurance Proceedings cannot meet the description of having an apparent relevance in the proceeding before me in the sense that they could reasonably (in the sense of 'on the cards') throw light on the issues. For example (and speaking generally), a repeat of evidence by a particular witness in slightly different terms may serve to reinforce it. In this regard I also take into account the role of experts in assisting the Court: Oswal v Commissioner of Taxation (No 5) [2016] FCA 666 at [9].

49    As to the second category, ANIP did not detail why the evidence of each of the lay witnesses grouped in the Notice might reasonably throw some light on the issues in this case. They were treated globally in one paragraph in the submissions. Those witnesses did not all give evidence about the same things. I have had regard at a general level to the evidence of each of the witnesses listed who gave evidence before me. I am not satisfied that any of Mr Curtis, Mr Horikiri or Mr Houben gave evidence in relation to or sufficiently connected to the particular issues regarding FEF and the alleged damage in the MFYs raised by ANIP on this application that would suggest that their evidence in the Insurance Proceedings is reasonably likely to add in the end to the relevant materials in this case. The Notice should be set aside insofar as it refers to those witnesses.

50    Having heard the trial evidence, I can say that Mr Turner gave some evidence about insulation. Other witnesses listed in the Notice were called by INPEX and gave evidence about conduct in the MFYs, being Mr Fernandes, Mr Natarajan, Mr Holmes and Mr Scott. I had initially included Mr Viney in this group (and indicated as much to the parties on 12 May 2025), but when reviewing his evidence again for the purpose of these reasons and making orders, I realised that I had misread the date from which his relevant involvement in the identification of defects in I228 coating had commenced. I therefore have concluded that the Notice should also be set aside insofar as it includes Mr Viney, for the same reasons that relate to the witnesses listed in [49] above. I apologise to the parties for this error.

51    As to the third category, Mr Courtney and Mr Sakai, the position is different. They were not called by any party in this proceeding. ANIP apparently included them in the Notice based on their job titles and putative roles (and in Mr Sakai's case, on the basis that he apparently approved one specification, a document that is already in evidence). Those limited matters are too flimsy a foundation from which to make an assumption about the particular matters that might be included in their statements filed in the Insurance Proceedings. I am not satisfied that ANIP has met the onus of establishing that their statements are sufficiently relevant to justify production, as that onus is explained in the authorities. Witnesses were called by INPEX in relation to each of the MFYs. That evidence was extensive. Evidence was also given as to FEF. Whether or not the witness statements of Mr Courtney and Mr Sakai might add in a material way to such relevant evidence in this proceeding is no more than speculative. I am not persuaded their statements should be produced.

52    As to the affidavit of Mr Doyle, I have assumed the translations related to the statements of either or both of Mr Horikiri and Mr Sakai. As I have set aside the Notice insofar as it relates to their statements, it should also be set aside in relation to Mr Doyle's affidavit.

Third contention – whether too late

53    The third contention relates to the timing of the Notice. I have already addressed this in part in relation to the first contention. Other matters as to timing may well be relevant should ANIP seek to rely on the statements in this proceeding in some way. Those matters can be addressed if and when they arise.

54    More generally, ANIP asserts that production of the documents will not cause any time, delay or expense to INPEX because the documents are easily identified and exist. Those are not the real issues on this application. The fact that the documents self-evidently already exist does not direct that they should be provided, whether in response to the Notice or by discovery.

Fourth contention – future use of documents

55    Both parties at times in their submissions raised forensic matters relating to admissibility. I cannot at this point properly form a final view that none of the statements, in part or in full, are admissible. I cannot fairly set aside the Notice on that basis or on the basis of abuse of process. The size and complexities of this case tell against such course being a fair outcome, particularly where this application has been determined in a tight timeframe.

56    However, as I explained at the hearing on 12 May 2025, the production of documents in compliance with the Notice does not render them admissible in any event. Whether the documents or any parts of them are admissible or will be admitted into evidence is not determined by this application.

57    It is not appropriate to say anything further about the issues that ANIP might encounter in this regard at present.

Orders

58    There will be orders to the effect that the Notice is set aside insofar as it relates to the witness statements of Mr Courtney, Mr Curtis, Mr Horikiri, Mr Houben, Mr Sakai and Mr Viney, and to the affidavit of Mr Doyle. Costs of the application will be reserved.

Associate:

Dated:    16 May 2025