BHP moves to hide even its own evidence in its defence against coal miner Simon Turner. Michael West with the latest bizarre twist in the David v Goliath court battle.
Mining giant BHP Group Limited has sought to withhold sections of the transcript of a Federal Court hearing in a case brought by a former coal miner who broke his back at one of its mine sites and is now pursuing compensation.
The application relates to proceedings brought by Simon Turner, a self-represented litigant who appeared in the Federal Court of Australia on Thursday, facing a bevy of barristers and solicitors acting for BHP, labor-hire firm Chandler Macleod and Coal LSL.
Although the hearing was conducted in open court, BHP and its related entities – BHP Mt Arthur Coal Pty Ltd and Hunter Valley Energy Coal Pty Ltd – have sought to redact portions of the transcript on the basis of interim suppression orders currently in place.
Blindfold too
For his part, Turner cannot afford to pay for the transcript of his own proceedings because the Court’s transcription service has been outsourced to a foreign multinational who is charging $1,952.53 for access to the transcripts heard in open court last Thursday.
BHP and associated companies and their lawyers have also applied for confidentiality and non-publication orders over a range of court documents, including Turner’s originating application and affidavit, an interlocutory application filed by the BHP respondents, an affidavit from their lawyer Trent Forno of Minter Ellison, and any outlines of submissions or evidence filed by the parties or by any access applicant in relation to the suppression application.
In submissions to the court last December, the BHP respondents argued that allowing the documents to be reported on before a defence is filed could distort public understanding of the proceedings.
“False” but we can’t tell you why
They contended that because Turner’s originating application alleges unlawful conduct, including bad faith, concealment of his employment terms and “false, misleading and unlawful” actions, publication “would give a misleading impression for the documents to be able to be reported upon without the claim being properly pleaded and a Defence put on by each of the respondents”.
A separate order was also made to prohibit the publication of an affidavit by Chandler Macleod’s solicitor Michael Russell.
Turner has opposed the orders, invoking open justice principles and arguing that some of the material is already in the public domain, including in Hansard.
In an email, the Court stated that the Registrar determined that it would be appropriate for sections of the transcript to be withheld due to the interim suppression order.
“In response to the parties’ replies and in order to protect the process of the Court (i.e. to ensure that the Registry does not breach the interim suppression order), the Registrar has made a decision that it is appropriate that a certain section of the transcript not be made available at this point in time,” the email stated.
The Court noted that once the suppression application is finally determined, access to the transcript may be reconsidered upon a fresh request.
Suppression orders remain in place
In December, the court made interim orders under section 37AI of the Federal Court of Australia Act, allowing the documents to remain confidential until the suppression application is determined.
Under section 37AF of the Act, the court may make suppression or non-publication orders where necessary to prevent prejudice to the proper administration of justice.
Presumably, the onus falls on BHP to establish why the principle of open justice should be thwarted, and how this high threshold is met.
The judge has reserved judgment on whether broader confidentiality orders sought by BHP should be granted. According to the Federal Court’s website, the court has a goal of delivering judgments within three months of being reserved.
What are they hiding?
Simon Turner previously headed a class action into what he alleges is a $2B wage theft by BHP and its labour hire associates.
The matter was never heard in court due to events relating to his own lawyers, Turner told MWM previously, who had been paid for by BHP.
David v the Goliaths. Lone coal miner tackles BHP & co in Court over massive wage theft
In relation to the suppression of documents in Turner’s matter this week, the Court Registrar said that once there had been “a final determination of the suppression application the matter of access to the transcript may be revisited by submitting a fresh request”.
Parties that sought transcript redactions
- BHP GROUP LIMITED (ABN 49 004 028 077)
- BHP MT ARTHUR COAL PTY LTD (ABN 83 000 181 902)
- HUNTER VALLEY ENERGY COAL PTY LTD (ABN 54 088 288 037)
David v Goliath. A coal miner v BHP. Epic court battle under suppression orders
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.