Federal Court of Australia

South32 Aluminium (RAA) Pty Ltd v Siemens Ltd [2026] FCA 399

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rr 20.16 and 20.32 of the Federal Court Rules 2011 (Cth), within 28 days of the date of this order the respondent make further and better discovery of all documents (as that term is defined in the Dictionary to the Evidence Act 1995 (Cth)) generated by employees of Siemens Industrial Turbomachinery AB (SIT) (now known as Siemens Energy AB) in connection with:

(a)    the installation and commissioning of MFC Unit 6 at the Refinery (as that term is defined in the Second Amended Statement of Claim (SASOC)), including the production of the document titled “Installation & Commissioning Manual Unit 6”;

(b)    the upgrade of the PCS7 v6 software to PCS7 v8 performed in 2014 (Software Upgrade as those terms are used in the SASOC);

(c)    the borescope and safety inspection performed in relation to MFC Unit 6 in 2015 (Safety Inspection), including the production of the Technical Report (as that term is defined in the SASOC); and

(d)    the Software Flaw or the Casualty (as those terms are defined in the SASOC);

to the extent to which they were created, produced or brought into existence for the purposes of performing the work which is the subject of these proceedings for or on behalf of the respondent.

2.    Within 28 days of this order, a director of the respondent shall file and serve an affidavit in accordance with FCR r 20.22, deposing to the steps taken by the respondent to locate discoverable documents, including:

(a)    the names of:

(i)    each of the personnel whose email accounts were searched; and

(ii)    any other archives, databases or document repositories (both physical and electronic) that were searched;

(b)    the total number of documents held in each of the email accounts, archives, databases or other document repository searched;

(c)    the names of any personnel listed in Annexure A to the Interlocutory Application filed on 9 December 2025 whose email accounts were unavailable to be searched;

(d)    in respect to the searches referred to in sub-paragraph (a) above, by reference to each of the categories of the Ordered Discovery:

(i)    any search terms applied to the searches undertaken;

(ii)    any limitations or parameters that were applied to the searches undertaken; and

(iii)    any other process or method applied by the Respondent to identify documents responsive to the categories of the Ordered Discovery; and

(e)    in respect to the email accounts referred to in sub-paragraph (c) above:

(i)    the circumstances in which those accounts became unavailable, including details of the Respondent’s document management system or archive protocol;

(ii)    when those accounts became unavailable; and

(iii)    what steps, if any, that were taken to retrieve any archives or back-up copies of those accounts.

3.    The respondent pay the applicants’ costs of the application to be taxed or as agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    On 14 November 2022 and 13 June 2024, this Court made orders that discovery be made by the respondent, Siemens Ltd (“Siemens”), of certain documents which are uncontroversially relevant to the issues in these proceedings. It is also not contested that documents exist which match the description of those ordered to be discovered. Siemens, however, asserts that it is not required to discover them because they belong to a related corporate entity, and are thus not within its “control”.

2    By the present application, the applicants, South32 Aluminium (RAA) Pty Ltd and others (collectively referred to as “South32”) seek orders under r 5.23(1)(a) of the Federal Court Rules 2011 (Cth) (FCR) requiring Siemens to discover those documents. They seek those orders on the basis that the documents are within Siemens’s “control”, within the meaning of r 20.14 of the FCR. Alternatively, they seek an order in accordance with the principles of Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co (1993) 46 FCR 428 (a “Sabre Order”), which would require Siemens to take reasonable steps to obtain the documents in question and make discovery of them. A further order sought is that an appropriate representative of Siemens make an affidavit deposing to the steps taken by it in performance of its discovery obligations.

3    For the reasons that follow, orders should be made requiring Siemens to make discovery of the documents in accordance with its obligations. The arrangements between it and its related corporate entity did not have the consequence that documents produced by the employees and agents of that company were beyond its control. On the contrary, the documents were produced in the course of an agency relationship between, first, Siemens and the related entity, and secondly, Siemens and the related entity’s employees. Further, even if no agency existed, Siemens has the benefit of a contractual right to inspect the documents. As such, they are within Siemens’s control and ought to be discovered in these proceedings.

4    Moreover, Siemens’s conduct in relation to discovery strongly suggests that either it or its advisers may have misunderstood the nature of its discovery obligations. That being so, it is appropriate to require it to provide an affidavit which describes the steps taken to discharge its obligations.

Background

5    These proceedings are somewhat complex, although the factual matrix relevant to the present application is relatively straightforward.

6    The essence of the claim advanced by South32 in these proceedings generally relates to damage sustained to a steam turbine generator (Unit 6), located at a power station in Worsley, Western Australia (the “Casualty”). The Casualty occurred on 24 October 2015, as a consequence of Unit 6 having overheated during operation. It was effectively destroyed as a result.

7    Investigations have since revealed that, as at the time of the Casualty, the Programmable Logic Controller (PLC) (a computer-based programmable device commonly used in process control and factory automation) for Unit 6 was missing a critical piece of code. That code, had it been included and working correctly, would have automatically triggered the Generator Circuit Breaker and prevented Unit 6 from overheating and, consequently, prevented the occurrence of the Casualty. This absence of code in the Unit 6 PLC software is referred to in these proceedings as the “Software Flaw”, and that nomenclature will continue to be used in these reasons.

8    South32 alleges that Siemens, which had been contracted to provide commissioning services in relation to Unit 6, is liable for the loss sustained as a result of the Casualty on a number of grounds. First, it alleges that Siemens engaged in misleading and deceptive conduct, by preparing an Installation and Commissioning Manual for Unit 6 that represented that certain tests had been satisfactorily carried out at a time when the Software Flaw existed. Siemens defends this allegation by asserting that the Installation and Commissioning Manual was prepared by a related company, Siemens Industrial Turbomachinery (“SIT”) (now known as Siemens Energy AB), and that SIT undertook the relevant tests required by that document. The connection between Siemens and SIT is that the former’s parent company, Siemens AG, owns 10% of the shares in the latter’s parent company, Siemens Energy AG.

9    South32 also asserts that an upgrade of a part of the Unit 6 PLC software in May 2014 (the “Software Upgrade”) had been carried out negligently, in that Siemens had failed to test for the existence of the Software Flaw. It also alleges that Siemens engaged in further misleading or deceptive conduct in relation to the testing associated with the upgrade. Siemens asserts in its defence that the upgrade occurred remotely, from the SIT home office in Sweden.

10    It is further alleged that Siemens conducted an inspection of Unit 6 in 2015 (the “Safety Inspection”) and, in doing so, breached its contract with South32 by failing to test for the Software Flaw and to recommend corrective measures. Additional allegations are made that Siemens was negligent in failing to identify and rectify the Software Flaw and accurately report its findings, and engaged in misleading and deceptive conduct regarding the existence and testing of the Software Flaw.

11    In general terms, the nature of Siemens’s defence to several grounds is to the effect that, though it was contracted to perform the work in respect of which complaint is made, the work was carried out by SIT. It says it is not responsible for the actions of that separate corporate entity in relation to the non-contractual causes of action. The key elements of that defence are that SIT (a) commissioned Unit 6, (b) prepared the Installation and Commissioning Manual, and (c) pre-configured the software used to upgrade the Unit 6 PLC.

12    Siemens opposes the present application on the basis that it has no “control” over documents which are in the possession of SIT. These are referred to as the “SIT-generated documents”, being all documents generated by SIT personnel in connection with:

(a)    the installation and commissioning of Unit 6, including the preparation of the Installation and Commissioning Manual, between about 2012 and 2013;

(b)    the Software Upgrade;

(c)    the Safety Inspection; and

(d)    the Casualty or Software Flaw.

13    It is not in dispute that these documents are within the scope of the orders for discovery made on 14 November 2022 and 13 June 2024. It follows that the only issues to be determined are whether the documents are within Siemens’s control or, for the purposes of a Sabre Order, whether it should be required to take steps to facilitate their production for the purposes of the trial.

Relevant principles

14    There is no real issue as to what amounts to having “control” of a document for the purposes of discovery in this Court. Under the FCR, the word means “possession, custody or power”: Sch 1 Dictionary. Otherwise, the cases indicate that a party has control of a document if it has physical possession of it, or an immediate right or ability to obtain possession of it, or to inspect it: Finnegan v Washington (No 5) [2025] FCA 25 [20] (“Finnegan”). The nature of “control” was considered by Anderson J in Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) (2020) 142 ACSR 58, 75 – 76 [70] – [72] as follows:

70    The term “control” in relation to a document is defined in the Dictionary to the Rules as meaning “possession, custody or power”… Dunn J stated in [B v B (Matrimonial proceedings: discovery) [1978] Fam 181] at 186 that

… “possession” means “the right to the possession of a document.” “Custody” means “the actual, physical or corporeal holding of a document regardless of the right to its possession,” for example, a holding of a document by a party as servant or agent of the true owner. “Power” means “an enforceable right to inspect the document or to obtain possession or control of the document from the person who ordinarily has it in fact.”

71    In addition, a person (including a company) will also have “power” over a document where the person has an actual and immediate ability to inspect it, even though the document is the property of, or is held by, another person: Taylor v Santos (1998) 71 SASR 434 at 438 (Taylor v Santos) per Doyle CJ, cited in Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S R L (No 8) [2014] FCA 376 at [17] per Besanko J. A person will not have such an ability if the person is only able to inspect the document if a third person agrees to permit inspection, or otherwise agrees to refrain from preventing inspection: Taylor v Santos at 438. See also Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 (Lonrho) at 635-6 per Lord Diplock, with Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russel of Killowen and Lord Keith of Kinkel agreeing.

72    The meaning of “custody” was considered by Mason J in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 … at 532 by reference to the definition given by the Shorter Oxford English Dictionary: “Safe keeping, protection; charge, care, guardianship”. See also City of Swan v McGraw-Hill Companies Inc (2014) 226 FCR 462 … at [7] per Rares J. Wigney J observed in Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 3) (2013) 306 ALR 414 … at [117] that a company director who has physical possession of books and records of the company has custody of them for the purposes of discovery.

15    Here, it is uncontested that Siemens does not have physical possession of the SIT-generated documents. Therefore, the issue is whether it has a presently enforceable right to take possession of the documents or to inspect them: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2021) 165 IPR 30, 54 [113]; Lonrho Ltd v Shell Petroleum Co Ltd (1980) 1 WLR 627, 635 (“Lonrho”); Australian Independent Newspapers Ltd v John Fairfax Holdings Ltd [1994] FCA 1167 [11] – [12].

16    A person does not have a presently enforceable legal right to inspect documents if, in order for them to acquire possession of or inspect them, it is necessary for a third person with control of them to agree to permit inspection (or to refrain from exercising that person’s control as to prevent inspection): Taylor v Santos Ltd (No 2) (1998) 71 SASR 434, 437 – 438; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) (2006) 155 FCR 1, 10 – 11 [53] – [56]. In the former case, Doyle CJ observed:

In my opinion the court should be cautious in extending the concept of power beyond the concept of a presently enforceable legal right, even though it may be appropriate to do so. Reading r 58 as a whole, my view is that the obligation to discover a document is limited to a document that the person in question has the legal power or (I can think of no better expression) actual and immediate ability to inspect, even though the document is the property of or is held by another person. That power or ability might exist in relation to a document that a person is not able to produce for inspection to a third person, for example a document in which a person has joint property with another person. But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document.

17    In the absence of a presently enforceable legal right in relation to documents, there is nothing that compels a party to acquire such a right: Finnegan [20]; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221 [20], citing Lonrho 635 – 636.

18    However, in circumstances where documents are in the possession or power of an agent, they may be regarded as being in the principal’s “control”: Australian Railroad Group Pty Ltd v Rowan (2004) 41 MVR 465, 471 [30]. Similarly, it is generally accepted that, if an agent brings documents into existence in the course of acting on behalf of their principal, they are the principal’s documents, of which they can require production: Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205, 216.

Are the SIT-generated documents within Siemens’s control?

Siemens has control over the documents as they were produced by its agents

19    It should be emphasised that any findings made in these reasons are for the purposes of the present application only, and they are made on the basis of the evidence and submissions put before the Court in respect of the application. Though it was submitted that the Court could not make any determinations on the necessary issues due to the paucity of the available material, that is incorrect. Conclusions can be reached on the material provided by the parties, even if it may be that additional information will come to light in the future that may change the conclusions reached. The issue of whether Siemens has “control” of the SIT-generated documents is live on the application, and it has had ample opportunity to adduce any evidence relevant to that question. No adjournment was sought to allow it to adduce any further evidence, and the Court’s obligation is to proceed on the available evidence.

20    Against that background, on the presently available evidence, Siemens has a right to possession of the SIT-generated documents on the basis that they were created by its agents. Specifically, two agency relationships arise: first, between Siemens and SIT, and secondly, between Siemens and certain SIT employees.

SIT as Siemens’s agent

21    The material before the Court indicates that the work undertaken by SIT in relation to Unit 6 was pursuant to a “Framework Agreement” between it and Siemens, entered into on 1 April 2010. That agreement, which appears to remain efficacious, makes provision for SIT to transfer personnel to Siemens to assist with the latter’s projects in Australia.

22    Clause 2(c) of the Framework Agreement provided that Siemens could engage SIT employees to assist with particular projects by raising a purchase order for the services it required. Based on certain purchase orders which Siemens has disclosed in the course of its discovery in these proceedings, it would appear that the SIT employees who worked on the project involving Unit 6 – being those employees who created the SIT-generated documents – were engaged by Siemens pursuant to the Framework Agreement. As such, it is the terms of that agreement from which any entitlement Siemens might have to possession of, or to inspect, the SIT-generated documents is to be ascertained.

23    Clause 2(b) of the Framework Agreement made provision for the transfer of employees from SIT to Siemens as follows:

b)     On request from LESSEE [being Siemens], the PROVIDER [being SIT] will temporarily transfer employees for Technical Field Advisory services for the projects in Australia. The General Conditions of this agreement enclosed herewith in Appendix 2, will apply to each of the individually transferred personnel, unless individual particulars have been agreed upon in the individual contracts.

24    The terms and conditions in Appendix 2 stated as follows:

These conditions govern the cross-border hiring out of personnel between companies belonging to the Siemens group. Siemens AG and all companies directly or indirectly controlled by Siemens AG ("group companies") belong to the Siemens group.

The PROVIDER shall be responsible for the selection of personnel; it is not permitted to deploy persons who are not employees of a group company. It is necessary to ensure that the applicable laws allow for the assigned personnel to be leased on (see also paragraph 2.7).

During their period of deployment, the leased personnel is subject exclusively to the instructions of the LESSEE, and is required to report to the LESSEE. They shall be integrated into the working procedures adopted by the LESSEE. The PROVIDER shall not be responsible for the work carried out for the LESSEE by the leased personnel.

25    By cl 3 of the Framework Agreement, it is stated:

3.         Performance of Services

For the purpose of providing the Services set out in Clause 2, PROVIDER is acting solely as an agent on behalf of LESSEE and nothing whatsoever shall constitute an employment relationship or any other relationship between the employees of LESSEE and PROVIDER. All the services will be performed exclusively outside Australia.

26    By cl 11.2, the Framework Agreement purported to be governed by the law of the Provider, being that of Sweden. There was no evidence on this application of the law of Sweden, and thus it can be assumed that it is the same as the law of Australia: Damberg v Damberg (2001) 52 NSWLR 492, 505 [119], but see the subsequent discussion as to the limitations of this presumption. Relevantly here, the Framework Agreement was written in English and uses ordinary English expressions, including legal expressions regularly used in the common law. It is also relevant that one of the parties to the agreement was incorporated in a common law country. In such circumstances, it might reasonably be presumed that the expression “agent” in cl 3 bears its common law meaning. In addition, since agency is an internationally recognised relationship, it can be assumed that if the parties intended the expression to mean something else, they would have expressly so provided.

27    Prima facie, as expressly acknowledged by cl 3, SIT was acting as Siemens’s agent when providing specialist workers to Siemens for its Australian projects, under the Framework Agreement. That being so, the documents produced by those workers, in the course of their work as employees of the agent, must be held for Siemens as principal. So much was made clear in Wickham Point Development Pty Ltd v Commonwealth [2020] NTSC 2, where it was observed at [13]:

The general rule is that documents brought into existence by an agent in the course of the agency are the principal's documents and the principal can require the agent to deliver them up. The right of the principal to be provided with records is said to arise by reason of the fact that the agent has been entrusted with the authority to bind the principal to transactions with third parties, so that the principal is entitled to know what his personal contractual rights and duties are in relation to those third parties. …

See further Breen v Williams (1996) 186 CLR 71, 88.

28    It is also apt to note that in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2011] SASC 90, it was observed at [98]:

… The relationship of agency by itself gives rise to a duty of disclosure. Documents brought into existence by agents during the course of, and for the purposes of, the agency are the principal's documents and should be provided to the principal on request.

29    As such, since Siemens has a right to production of the SIT-generated documents, they are within its “control” for the purposes of the FCR, and thus Siemens is obligated to discover them.

SIT’s employees as Siemens’s agents

30    Moreover, it would also appear that a separate (though related) agency relationship arose between Siemens and the SIT employees who were transferred to it under the Framework Agreement.

31    The terms of the Framework Agreement indicate that SIT employees transferred to Siemens would undertake work as the staff or employees of the latter for the purposes of the relevant project. So much is apparent from the general terms and conditions, appearing at Appendix 2 to the Framework Agreement, which provide that the work performed by the employees provided by SIT was work undertaken for and on behalf of Siemens. That is, even though they may have remained the employees of SIT, they became subject to the direction and control of Siemens as if they were its employees. It would follow that any work undertaken by those employees was work performed for and on behalf of Siemens and as its agent.

32    Having regard to the authorities referred to above (see supra [27] – [28]), it follows that any documents created by the SIT employees, in the course of undertaking work for Siemens pursuant to the Framework Agreement, are held for Siemens. Necessarily, Siemens is entitled to demand that they be produced to it or that it be entitled to inspect them. It therefore has “control” over them.

The purchase order terms negating agency

33    Notwithstanding the above conclusions, it must be borne in mind that the relationship between Siemens and SIT was also shaped by the terms attached to purchase orders issued in relation to each individual aspect of the work undertaken. Importantly, to the extent of any inconsistency between the terms of a purchase order and the Framework Agreement, the former will prevail.

34    That is significant, because it would appear that the terms of one purchase order, dated 13 June 2014, included a term which purported to eschew the existence of a relationship of agency between SIT and Siemens. That appears in cl 17, which provides:

17.    Relationship between the Parties

17.1.    The relationship between the Parties is one of independent contractor at all times. Nothing in the Agreement is intended to:

(a)     create an agency, partnership, joint venture or fiduciary relationship between Siemens and the Supplier; or

(b)     have the effect of making any of the Supplier’s Personnel the employees of Siemens.

17.2.     The Supplier shall pay all applicable salaries, leave entitlements, taxes (including payroll and PAYG taxes), superannuation and workers' compensation for the Supplier's employees.

35    A similar provision appeared in the terms of a purchase order dated 27 November 2014, though it did not appear in earlier purchase orders, such as those dated 28 May 2008 and 26 July 2012. There were no terms attached to the purchase order dated 8 April 2011 issued by Siemens, though it can be assumed that the terms of the Framework Agreement applied to it, or that it was subject to the same terms as the purchase orders of 28 May 2008 and 26 July 2012.

36    Similarly, the document discovered by Siemens dated 1 May 2005, entitled “Terms and Conditions for Deliveries and Services for Siemens Internal Transactions”, did not contain any term analogous to cl 17. Indeed, cl E.2 of that document suggests that the employees provided to Siemens effectively became the employees and agents of Siemens when working for it. As such, on the available evidence, it would appear that the work performed pursuant to purchase orders issued prior to June 2014 was unaffected by any clause purporting to negate an agency relationship. That being so, the SIT employees who carried out the relevant work under those purchase orders did so as Siemens’s agents (and the conclusions drawn in the previous section apply).

37    As to the purchase orders issued after June 2014, whilst cl 17 might have the effect of negating any agency between Siemens and SIT, as well as any employment relationship between Siemens and SIT’s employees, it does not necessarily follow that SIT’s employees did not undertake the work which they did for Siemens as its agent. That is because, despite the wording of the clause, the circumstances of the relationship between the SIT employees and Siemens were relevantly unchanged. The employees were provided to Siemens for the purposes of undertaking work which Siemens was required to perform under its agreement with South32. Prima facie, the purchase order dated 13 June 2014 is for the provision of equipment and labour, rather than a subcontract to perform a separate part of the works which Siemens had undertaken to perform. It can be discerned from the material – and, indeed, Siemens’s own allegations – that Siemens necessarily gave the hired employees access to the work which was to be done for South32, facilitated their undertaking of that work, and authorised them to do so on its behalf. That remains true even if, by reason of cl 17, they did not become its employees, at least insofar as the parties are able to regulate that part of their agreement.

38    In broad terms, SIT appeared to act in the manner of a labour hire firm for other companies in the Siemens group. Even though its relationship with Siemens was not necessarily one of agency, it is reasonable to conclude that, when the employees undertook their work, they did so as Siemens’s agent.

Assignment of intellectual property rights

39    The above conclusions are supported by the manner in which the intellectual property rights between the parties and other rights to inspect documents are dealt with in the purchase order terms. The post-June 2014 version of the terms provided that:

21.2.     Unless otherwise agreed by the Parties in writing and subject to clause 21.1,     the Supplier:

(a)     assigns to Siemens free from all encumbrances all IP Rights specifically created by the Supplier or the Supplier’s Personnel for Siemens in connection with the Work; and

(b)     acknowledges that by virtue of this clause all such IP Rights vest in Siemens upon their creation, and the Supplier shall, at its cost, do all things reasonably requested by Siemens to enable Siemens to assure further the rights assigned under this clause, including executing (and procuring the Supplier’s Personnel to execute) any formal assignment or other documents required to give effect to this clause and to provide all reasonable assistance to Siemens to protect Siemens’ interests.

21.3.     The Supplier must disclose to Siemens any significant material which the Supplier and/or the Supplier’s Personnel create in the course of providing the Work at the time of its creation.

40    The fact that the intellectual property rights in documents produced by SIT employees in the course of their work under the purchase orders is to vest in Siemens, tends to suggest that the employees carried out that work as Siemens’s agents. If SIT was truly an independent subcontractor, it is unlikely that the copyright in the documents produced by its employees would be vested in Siemens.

41    However, it might reasonably be said that the need to assign the intellectual property rights to Siemens indicates to the contrary because, if SIT were in fact Siemens’s agent, the rights would automatically vest in the latter, thus rendering the clause unnecessary. Though there is force in that, it is more likely that the assignment mechanism was the preferable method by which the parties ensured that the totality of the intellectual property rights vest and remain in Siemens. That a clause similar to cl 21.2 exists in the pre-June 2014 version of the purchase order terms – pursuant to which the employees are clearly Siemens’s agents – supports that view. In the absence of any such agreement, the relevant intellectual property rights might have vested jointly in the parties or disputes might have otherwise arisen.

42    Overall, it should be concluded that the work performed by the employees of SIT under the post-June 2014 purchase orders also work performed as Siemens’s agents. As such, any documents generated in respect of that work are held by SIT on Siemens’s behalf. Siemens thus has a right to possession of the documents, and therefore, being within its “control”, it is required to discover them.

Alternatively, the documents are discoverable by reason of Siemens’s right to inspect

43    In the alternative, under the post-June 2014 version of the purchase order terms, Siemens had an absolute contractual right to inspect any “significant material” produced by SIT employees in the course of undertaking the work. So much appears from cl 21.3 of those terms, which is set out above (see supra [39]). That right to disclosure is not conditioned on SIT’s agreement, and is the equivalent of a right to inspect, at the very least.

44    The meaning of “significant material” is not defined in the purchase order terms. The terms also do not specify the matters to which the material must be significant. In the absence of a specific definition, it may be assumed that the term has a general meaning, such that it covers all material that is considered to be “significant”.

45    To that end, regard may be had to the following observations of Foster J in ACI PET Operations Pty Ltd v Comptroller-General of Customs (1990) 26 FCR 531 at 551 – 552, as to the meaning of the word “significant” (albeit in the context of a legislative provision):

The word “significant” has acquired a number of shades of meaning in common parlance. For instance, it is not infrequently used as a substitute for “substantial”. It is, however, clearly important that it be given as precise a meaning as possible in this legislative provision… I turn, therefore, to the dictionaries for guidance and find that the Oxford English Dictionary (2nd ed) defines the word (where relevant) as “full of meaning or import; important, notable; and having or conveying a meaning”, and that the Macquarie Dictionary defines it as “important; of consequence; expressing a meaning; indicative”.

I derive assistance also from considering that the word is the opposite of “insignificant” which word is defined in the Macquarie Dictionary as meaning “unimportant, trifling or petty” and as “too small to be important”. Looked at from this point of view “significant” may be regarded as meaning “not unimportant or trivial” or as “sufficiently large to be important”.

46    Adopting a similar definition here, the SIT-generated documents (as described at supra [12]) are clearly “not unimportant or trivial” and “sufficiently large to be important” to Siemens’s defence to the claims made against it by South32. They illustrate the nature and extent of SIT’s involvement in the work alleged to have been negligent or misleading or deceptive. For that reason, in the circumstances, those documents fall within the scope of Siemens’s right to disclosure under cl 21.3 of the post-June 2014 purchase order terms.

47    It should also be noted that the parties intended for cl 21.3 to survive termination of the agreement formed by the purchase order, whether by breach or effluxion of time. Relevantly, cl 31.6 provided:

31.6     The provisions of the Agreement (and to the extent permitted by Law each Security Interest) remaining to be performed or capable of having effect after termination or expiry remain in full force and effect notwithstanding such termination or expiry. ...

48    As such, there is no reason why cl 21.3 is not capable of surviving termination or expiry, with the consequence being that it remains efficacious.

49    It follows that the terms of the post-June 2014 purchase orders provide Siemens a right to inspect the SIT-generated documents within the meaning of the above authorities (see supra [14]). It is, therefore, required to discover those documents because they are within its “control”, notwithstanding that they are in the actual possession of SIT.

Siemens’s obligation to discover

50    The result of the foregoing is that it does not matter whether the work performed by SIT’s employees, which is the subject of the claims by South32, was performed pursuant to the purchase orders governed by the original terms or under those which operated pursuant to the amended terms, which seemed to appear in around June 2014. In relation to the earlier terms, Siemens’s right to the documents arises by reason of the agency of the SIT employees. As for the later terms, the discovery obligation arises either from Siemens’s right to inspect the documents under the purchase order terms, or because the employees were Siemens’s agents in any event.

51    Orders should be made requiring Siemens to make discovery of the documents in accordance with the orders previously made.

Other relief

52    In the alternative, South32 sought a Sabre Order which might bring the documents in question to light, but, given the above conclusions, there is no need to deal with that question. Were it necessary to answer, it is probable that the making of such an order would be warranted in this case.

The provision of an affidavit

53    A further order sought by South32 is the provision of an affidavit articulating the steps taken by Siemens in the performance of its discovery process, as is provided for at [10.10] and [10.11] of the Central Practice Note: National Court Framework and Case Management (CPN-1).

54    There are good grounds for making such an order. As the above reasons reveal, it is apparent that Siemens or its solicitors have misunderstood the relevant discovery obligations. It was, with respect, not overly difficult to identify Siemens’s rights in relation to the SIT-generated documents, and that those rights rendered those documents discoverable by it. It would thus appear that insufficient attention had been paid by Siemens to the discovery process and to its obligations. It is perhaps not irrelevant that Siemens’s error in ascertaining the scope of its discovery obligations benefitted it in the litigation.

55    Separately, another reason which supports the making of such an order is Siemens’s solicitors’ failure to provide suitable responses to certain requests from Carter Newell, for South32, as to the nature and scope of the processes undertaken when conducting discovery. Rather than attempting to provide any clear explanation to show that it had complied with its obligations, Siemens, by its solicitors, seems to have attempted to obfuscate the extent to which it had conducted searches.

56    On 25 June 2024, Carter Newell requested a list of the search parameters applied by Siemens in providing further discovery. On 2 July 2024, Clyde & Co for Siemens refused to provide that information and merely advised that they had “reviewed all of the documents within the Respondent’s control relating to this matter” and “formed a view as to whether the document responded to any of the categories of documents that the Respondent is required to discover”. It was asserted that search terms were not used as the discovery was undertaken manually.

57    A further attempt was made by Carter Newell to obtain some clarity around the nature of the searches undertaken by Siemens by a further email of 18 July 2024. No immediate response was provided, but on 7 August 2024, Clyde & Co advised that they had “carried out reasonable and proportionate searches”, which identified three sources of “potentially relevant material”, including the email accounts of “relevant personnel involved in the project”, though only to the extent that they were still accessible. Clyde & Co indicated that the documents were inspected and considered manually, even though they exceeded 24,000 in number.

58    More than a month later, on 12 September 2024, after identifying deficiencies in Siemens’s discovery, Carter Newell again sought details about how the discovery process had been undertaken, specifically as to the “reasonable and proportionate searches” undertaken and the names of the “relevant personnel” identified as involved in the project. Carter Newell received a response to this request more than four months later, on 28 January 2025, when Clyde & Co disclosed a further 32 documents which it had located in the course of what it said was “liaising with factual witnesses”, though many of the queries raised by Carter Newell were left unanswered.

59    From the terms of this response, it would appear that personnel at Siemens had undertaken a review of the documents in its possession and sent the documents which they considered relevant to Clyde & Co, which then undertook the review for discovery purposes. This statement is inconsistent with the assertion made by Clyde & Co on 25 June 2024 that they had reviewed all the documents within the respondent’s control relevant to the matter.

60    On 7 February 2025, Carter Newell sought responses to the previously raised queries and articulated further concerns about Siemens’s discovery processes. That prompted further discovery by Siemens on 15 April 2025, of some additional 348 documents, but still there was no response to the queries as to the adequacy of the steps taken to ensure that discovery had been completed appropriately.

61    Yet again, Carter Newell made additional inquiries as to the searches undertaken by Siemens in the conduct of its discovery process and, on 29 August 2025, Siemens discovered an additional 2,236 documents. This tranche of discovery included the Framework Agreement which has been considered in these reasons. It is a document that is obviously relevant to the issues between the parties, especially in the light of the defences raised by Siemens, and yet no explanation has been provided for its late production.

62    Further correspondence transpired in relation to the nature and extent of the searches undertaken by Siemens and, in particular, the search terms and methodology applied. On 26 September 2025, Siemens refused to provide any articulation of these matters alleging that it had provided “comprehensive responses…regarding its discovery processes”.

63    Despite that, on 28 November 2025, Siemens provided an additional discovery consisting of a further 182 documents.

64    The manner in which Siemens has undertaken discovery to date sufficiently demonstrates that neither it nor its legal advisers understand its obligations. The process is one in which a litigant is obliged to faithfully and honestly perform the duty prescribed by the Court rules, and that should occur without prompting by the other party. In this case, in order to secure Siemens’s compliance with its discovery obligations, South32 has been forced to undertake the litigious equivalent of “pulling teeth”. It was only when Carter Newell pressed Clyde & Co in relation to specific matters, that the discovery process was reappraised, and that resulted in the production of further documents. That is not the way in which discovery should occur and, indeed, it is inconsistent with the obligations imposed on Siemens and its legal representatives by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

65    Ultimately, Clyde & Co’s assertion on 25 June 2024 that it had “reviewed all of the documents within the Respondent’s control relating to this matter”, and formed a view as to those which were relevant, was untrue. A further 2,798 documents were later disclosed in several tranches. In the absence of any fulsome explanation, there is a real probability that the piecemeal manner in which documents have provided by Siemens has resulted from a lack of appreciation of what is relevant to the issues between the parties.

66    The history of Siemens’s failure to comply with its discovery obligations, taken alone or together with its failure to discover documents in the hands of its agents or those in respect of which it had a right of inspection, provides ample justification for requiring it to file an affidavit as to the steps which it has taken to perform the discovery process.

67    The foregoing gives rise to concerns about Siemens’s conduct in this litigation. It may well be that the problem has arisen through oversight, inadvertence, or accident but, given the history set out above, the possibility of that being so is less than it might have been. In those circumstances, although it will not be explicitly ordered to do so, the affidavit to be produced by one of Siemens’s directors should include an explanation as to why the discovery process by it has been so delinquent.

68    In the result, an order should be made for a director of Siemens to provide an affidavit in relation to the discovery process as sought by South32. As is revealed by the correspondence between the parties, Siemens has not considered in any detail the email accounts of persons who provided services to it in the course of undertaking the work which is the subject of these proceedings. The apparent lack of attention paid by Siemens to its disclosure obligations in general creates sufficient doubt that it has sought to locate the documents from those sources.

69    Though the scope of the affidavit sought by South32 is wide, and it will no doubt take some time to prepare, it is appropriate in circumstances where Siemens has substantially failed to comply with its discovery obligations.

Costs

70    As South32 has been successful on its application, there is no reason why it should not be entitled to recover its costs on the standard basis.

Associate:    

Dated:    10 April 2026

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