FEATURE ARTICLE -
Advocacy, Issue 101: September 2025
Scope of Non-Party Disclosure: ‘Spear Fishing’ not ‘Drag Netting’!
BY
Richard Douglas KC - Callinan Chambers - Hemmant’s List
15 Views
Tuesday 9th September, 2025
Scope of Non-Party Disclosure: ‘Spear Fishing’ not ‘Drag Netting’!
In Adani Mining Pty Ltd v Pennings [2025] QSC 157 (2 July 2025), the court addressed the proper approach apropos of the obligations of a respondent receiving a notice of non-party disclosure, from a party, under the Uniform Civil Procedure Rules 1999 (Qld). Freeburn J addressed the remaining categories of document by refusing one category and amending – so as to narrow – the other two categories. His Honour – adopting the metaphors of ‘spear fishing’ and ‘drag netting’ – wrote:
[7] By the time of the hearing the only categories of documents sought by Adani from Downer were as follows:1
No
Date
Description
Relevance
4
September until December 2017
All Documents (including internal correspondence, draft statements, announcements or media releases) discussing the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
Category 4 is directly relevant to paragraph 75 of the 3FASOC as to why Downer ceased negotiations with Adani Mining. Mr Pennings at paragraphs 75(i) and (j) of the further amended defence (summarised at paragraph 11 above) relies upon the ASX announcement to deny that Downer ceased negotiations with Adani Mining due to the threats. The process for how the ASX announcement was made is directly relevant.
7
2017
All letters or emails from the Galilee Blockade or Pennings.
Category 7 is directly relevant to paragraph 67 of the 3FASOC (that Downer knew about each of the threats) which is summarised at paragraph 8(c) above.
12
September until December 2017
All Documents:
Category 12 is directly relevant to paragraphs 73 and 74 of the 3FASOC wherein it is alleged that in or around November 2017, there was a meeting (Downer Meeting) between Downer and Adani Mining and at the meeting Downer terminated negotiations with Adani Mining.
(a)
recording what was to be discussed at the Downer Meeting;
(b)
recording when the Downer Meeting took place including calendar entries or diary records;
(c)
recording what was discussed at the Downer Meeting.
The Second Notice
[8] Those descriptions of the categories of documents sought by Adani impose a burden on Downer. Using category 4 as an example, Downer is required to search its documents to see if there are documents that discuss the issue of an ASX announcement, media release or statement concerning the decision of the nominated party in relation to the Carmichael Mine or Adani Mining.
[9] For reasons that will be explained, a non-party should not be required to shoulder such a burden.
[10] It is necessary to consider, in a little detail, the features of the second notice of non-party disclosure. Firstly, the notice identifies the allegations in Adani’s proceedings against Mr Pennings by quoting extensively from Adani’s statement of claim. The quotes are from paragraphs 37, 38, 40B, 60 to 77, and 98 to 103 of the statement of claim, running to just over 34 pages. The thrust of the paragraphs quoted are that Mr Pennings engaged in an electronic campaign as well as ‘direct action’ designed to persuade Downer not to contract with Adani. The allegations are that Mr Pennings’ actions led to Downer resolving to terminate negotiations with Adani in late 2017.
[11] Secondly, the second notice of non-party disclosure contains a list of definitions. As might be expected, the concept of a ‘document’ is widely defined.
[12] Thirdly, the second notice of non-party disclosure lists the documents required of Downer. For example, category 1 requires production of:
All [2017] Documents (including correspondence, board packs, agendas, reports and other relevant information) prepared for the purpose of a board meeting or subcommittee meeting which refer to or contain information about:
Pennings;
Adani Mining;
the Galilee Blockade;
protests;
threats of protests;
the Downer AGM;
the Downer Articles;
the Downer Direct Action;
the Downer Posts;
negotiations, including the status of negotiations, with Adani Mining; or
whether the nominated party should cease negotiations with Adani Mining and why.
[13] Category 1 is one of a number of categories that have been resolved as between Adani and Downer. The three categories still requiring a court decision are explained above. However, category 1 is useful because it illustrates the approach by Adani in drafting the second notice of non-party disclosure.
[14] Fourth, the second notice of non-party disclosure sets out the notices to Downer required by the relevant form.2 Those notices include a list of Downer’s obligations and an explanation of its rights, including its right to object.
[15] The burden imposed by category 1 of the second notice of non-party disclosure is that it requires Downer to:
(a) digest the allegations made in nearly 35 pages of the statement of claim so that a proper assessment can be made of relevance; and
(b) search all of its documents produced in the 2017 calendar year for documents that were both:
(i) prepared for the purpose of a board meeting or subcommittee meeting; and
(ii) refer to or contain information about the 11 topics that are listed in the bullet points;
(c) collate and produce those documents.
[16] If Downer has no objection, all of that is required to be done within 14 days.
[17] Before turning to the specific categories in issue in this case, it is necessary to explain the procedure of notices of non-party disclosure.
The Notice of Non-Party Procedure
[18] It is something of a misnomer to describe the procedure requiring non-party disclosure as a ‘disclosure’ process.3 The obligation imposed on the recipient of a notice requiring non-party disclosure can be contrasted with the disclosure duties of a party to a proceeding. The notice of non-party disclosure procedure enables a party to litigation to require a non-party to produce “a document” (or documents), provided that the document or documents are:
(a) directly relevant to an allegation in issue in the proceeding; and
(b) in the possession or under the control of the respondent/non-party; and
(c) a document or documents the respondent/non-party could be required to produce at the trial of the proceeding.4
[19] At the core of that process is the ‘one-off’ production of the document or documents described in the notice.5 The process is similar to a subpoena for production,6 which requires the identification of the documents sought with reasonable particularity.7 To comply with the notice, all the non-party needs to do is produce the specified documents. And the regime is sensitive to the fact that the non-party is a stranger to the litigation. For that reason, the non-party is entitled to its reasonable costs and expenses of producing the document or documents.8 Even if the non-party objects to production, the starting point is that each party bears their own costs of the application to determine the objection.9
[20] On the other hand, the duty of disclosure imposes on parties to litigation a continuing, positive duty to disclose to the other party each document that is directly relevant.10 The essential features of that positive duty are that the disclosing party has a continuing obligation to assess what documents are “directly relevant to an allegation in issue”, to properly describe those documents in a list of documents and to enable inspection or supply copies of any non-privileged documents that are requested.11 The requirement that the parties to litigation assess and then disclose the directly relevant documents in the parties’ possession or control, even if contrary to that disclosing party’s interests, serves the administration of justice by requiring the relevant truth.12 Parties who fail to disclose are subject to sanctions and a failure to properly disclose may adversely affect a party’s credit. The lawyers for the parties have a paramount duty not to mislead the court or permit the court to be misled, a duty that extends to disclosure obligations.
[21] It follows from those contrasting requirements that the notice of non-party disclosure will be consistent with the rules if the true nature of the notice is to require the non-party to produce documents. But a stranger to the litigation can legitimately complain if served with a notice that imposes on that non-party an obligation to undertake a detailed assessment of what documents are, or might be, comprehended by the pleadings in the proceeding. Those burdens of assessment are to be borne by the parties, not by a stranger to the litigation.
[22] The legislative regime for notices of non-party disclosure includes some protections for a non-party served with such a notice. The notice can only compel the production of specific documents which are directly relevant to an allegation in issue in the pleadings. Production of the document, or documents, cannot be compelled if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.13 And the court will ensure that the applicant does not cast its net too widely.14 Or, perhaps more accurately, the party issuing such a notice or subpoena cannot indulge in drag netting; the party is restricted to spear fishing.15
[23] The regime recognises that litigation is an expensive and time-consuming exercise for the community and for the parties, and that the extent to which strangers are put to inconvenience and expense by the litigation should be kept to a minimum.
Category 4: Documents Discussing the issue of an ASX Announcement etc.
[24] It is now necessary to consider each of the categories of documents required by Adani from Downer.
[25] Category 4 requires Downer to search its documents and to determine if any of those documents:
(a) discuss the issue of an ASX announcement, media release or statement; and
(b) concern Downer’s decision in relation to the Carmichael Mine or Adani; and
(c) fall within the window from September to December 2017.
[26] It is true that the date range is relatively narrow. However, that does not mean that the search is necessarily narrowly confined. A public company like Downer is likely to have a wider range of documents. Some documents will be hard copies, and some will be electronic.16 For hard copies, a manual process will be required to assess whether any documents answer the description. Electronic searches may be able to narrow the search but the total volume of emails that will need to be searched may exceed 1 million.17 An initial search of Downer’s records using the keywords ‘Adani’ and ‘Carmichael’ returned about 29,000 hits.18 Analysing and assessing those hits will be a substantial undertaking.
[27] The real problem is that, rather than requiring Downer to produce a specific document or category of documents, the true nature of Adani’s category 4 is to this effect: ‘search your documents and tell me if you have documents that discuss this topic, and concern your decision, and fall within the specified date range’. The requirement that Downer carry out a process akin to traditional interparty disclosure is clear from the oral submission of Adani’s counsel to this effect: “we’re looking for documents that discuss the issue of an ASX announcement, media release, or statement concerning the decision of Downer in relation to…Carmichael Mine or Adani Mining”.19 That makes clear that Adani expects Downer to carry out the search and, in doing so, determine whether any documents possess the particular content that Adani is looking for.
[28] The nature of the request is akin to drag netting, and it requires the non-party to drag the net and sort the catch.
[29] For those reasons, category 4 is too broad and too burdensome. Rather than requiring Downer to produce a specific document or category of documents, the category compels Downer to search its documents for two types of specific content.
5 The obligation to respond to a notice of non-party disclosure is not an ongoing duty: UCPR rule 242(4).
6 The process is limited to the production of documents which would be the subject of a subpoena duces tecum at a trial: UCPR rule 242(1)(c).
7 See the line of cases commencing with Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. See also cases like Spencer Motors Pty Ltd v LNC Industries Ltd[1982] 2 NSWLR 921 at 929 –930 where the court considered whether a subpoena (or notice to produce) may properly require the production of documents that “relate to” a particular fact or subject matter.
12Flight v Robinson (1844) 8 Beav 22 50 ER 9, Lord Langdale MR at 33, 34. The idea was “to scrape the conscience of the defendant”: Lord Bowen, “Progress in the Administration of Justice during the Victorian Period” in Ward T (C) (ed), The Reign of Queen Victoria: A Survey of Fifty Years of Progress (Smith, Elder, 1877) Vol 1, 281 (cited in The Laws of Australia, Thomson Reuters at [5.3.230].
