Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 (15 July 2010)

Last Updated: 16 July 2010

FEDERAL COURT OF AUSTRALIA

Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited
[2010] FCA 739

Citation:		Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739
Parties:		CHEUNG KONG INFRASTRUCTURE HOLDINGS LIMITED v BLUESCOPE STEEL LIMITED (ACN 000 011 058) and MERRILL LYNCH INTERNATIONAL (AUSTRALIA) LIMITED (ACN 002 892 846)
File number:		NSD 309 of 2010
Judge:		FOSTER J
Date of judgment:		15 July 2010
Catchwords:		PRACTICE AND PROCEDURE – application to set aside a Notice to Produce issued by the first respondent to the applicant requiring the production of evidence tendered in a New Zealand arbitration and an interim award in that arbitration – the first respondent’s stated purpose in issuing the Notice to Produce was to enable it to argue that the proceedings in the Federal Court should be stayed or summarily dismissed as an abuse of the process of the Court because the applicant is seeking to re-litigate in the Federal Court issues and claims which are being, have been or ought to have been litigated in the New Zealand arbitration – relevant principles discussed – Notice to Produce set aside in part insofar as it required the production of evidence tendered in the New Zealand arbitration – applicant compelled to produce the Interim Award
Legislation:		Trade Practices Act 1974 (Cth), s 52 Fair Trading Act 1999 (Vic), s 9 Federal Court Rules, O 27 r 4(1), O 33 r 12
Cases cited:		Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 applied Mandic v Phillis (2005) 225 ALR 76 applied Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3; (2002) 116 FCR 372 applied National Employers’ Mutual General Association v Waind [1978] 1 NSWLR 372 cited Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 cited Reichel v Magrath (1889) 14 App Cas 665 cited Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 cited Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 applied Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 applied Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 applied Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96 applied Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 applied Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 cited Seven Network Limited v News Limited (No 5) (2005) 216 ALR 147 applied
Date of hearing:	No oral hearing—decided on the papers
Date of last submissions:	9 July 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	61
Counsel for the Applicant:	Mr JM Hennessy
Solicitor for the Applicant:	Johnson Winter & Slattery
Counsel for the First Respondent:	Mr TM Mehigan
Solicitor for the First Respondent:	Blake Dawson
Counsel for the Second Respondent:	Mr S Nixon
Solicitor for the Second Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 309 of 2010

BETWEEN:	CHEUNG KONG INFRASTRUCTURE HOLDINGS LIMITED Applicant
AND:	BLUESCOPE STEEL LIMITED (ACN 000 011 058) First Respondent MERRILL LYNCH INTERNATIONAL (AUSTRALIA) LIMITED (ACN 002 892 846) Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	15 JULY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Paragraphs 1 to 3 of the Amended Notice to Produce dated 6 July 2010 served by the first respondent upon the applicant on 6 July 2010 (the Notice to Produce) be set aside.
2. The applicant produce to the first respondent by 5.00 pm on 19 July 2010 a true copy of the document required to be produced under par 4 of the Notice to Produce.
3. The first respondent pay the applicant’s costs of and incidental to the applicant’s Notice of Motion filed in Court on 7 July 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 309 of 2010

BETWEEN:	CHEUNG KONG INFRASTRUCTURE HOLDINGS LIMITED Applicant
AND:	BLUESCOPE STEEL LIMITED (ACN 000 011 058) First Respondent MERRILL LYNCH INTERNATIONAL (AUSTRALIA) LIMITED (ACN 002 892 846) Second Respondent

JUDGE:	FOSTER J
DATE:	15 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 6 July 2010, the first respondent (BlueScope) served upon the lawyers for the applicant (CKI) an Amended Notice to Produce (the Notice to Produce).
2. By the Notice to Produce, BlueScope required CKI to produce to the Court at the directions hearing held before me on 7 July 2010 the following documents:
   1. a copy of the agreed bundle of documents and any other documents tendered during the arbitration between the Applicant, Ironsands Investments Ltd, New Zealand Steel Ltd and Toward Industries Ltd (the arbitration);
   2. a copy of all witness statements and experts reports tendered by the parties during the arbitration;
   3. a copy of the transcript of the oral evidence given during the arbitration hearing; and
   4. a copy of the interim award or ruling delivered by the arbitrator in the arbitration on 28 June 2010.

(the contentious documents)

3. CKI objects to producing any of the contentious documents and has moved to set aside the Notice to Produce.
4. BlueScope contends that it has a legitimate forensic purpose in seeking production of the contentious documents. By Notice of Motion filed in Court on 7 July 2010, BlueScope seeks orders that the whole of the proceedings brought by CKI against it be permanently stayed or summarily dismissed. Alternatively, it seeks an order staying those proceedings:

... pending final determination of issues of remedies and damages in the arbitration in New Zealand before AR Galbraith QC between Toward Industries Limited and New Zealand Steel Limited (wholly owned subsidiaries of the First Respondent) and Ironsands Investments Limited and the Applicant.

5. It is BlueScope’s case that the proceedings in this Court constitute an abuse of the process of the Court or are vexatious. In broad terms, BlueScope says that CKI is attempting to re-litigate in this Court claims which it made in the New Zealand arbitration referred to in BlueScope’s Notice of Motion (the arbitration) and is also attempting to re-litigate certain important factual matters which underpinned those claims. BlueScope says that it is entitled to require the production of and to have access to the contentious documents in order to be able fairly and adequately to present its case for a stay or dismissal of the proceedings against it. BlueScope’s Notice of Motion is fixed for hearing before me on 31 August 2010.
6. The second respondent (Merrill Lynch) has filed a Notice of Motion in which it seeks an order for a temporary stay of the proceedings brought by CKI against it. The order which it seeks is in the same terms as the temporary stay sought in the alternative by BlueScope (as to which, see [4] above). Merrill Lynch’s Notice of Motion is also fixed for hearing before me on 31 August 2010.
7. Merrill Lynch has not served any Notice to Produce on CKI. However, it will no doubt seek to inspect and to use the contentious documents in support of the relief sought by it in its Notice of Motion should CKI fail to persuade me to set aside the Notice to Produce.
8. These Reasons for Judgment determine CKI’s application to set aside BlueScope’s Notice to Produce.

THE NEW ZEALAND ARBITRATION

9. The evidence tendered in relation to CKI’s Notice of Motion proved the following facts and matters concerning the arbitration:

(1) The parties to the arbitration are: Toward Industries Limited (Toward) (as first claimant); New Zealand Steel Limited (NZ Steel) (as second claimant); Ironsands Investments Limited (Ironsands) (as first respondent); and CKI (as second respondent).

(2) The arbitration is currently being held in New Zealand under the Arbitration Act 1996 (NZ).

(3) In late April 2010, the pleadings and the written submissions so far lodged in the arbitration were provided to the legal representatives of BlueScope and to the legal representatives of Merrill Lynch. On 19 May 2010, those legal representatives were also given a copy of an Interim Award dated 30 April 2010 delivered in the arbitration. This Interim Award, I am told, determined all questions of liability in the arbitration. Issues relating to damages or compensation are yet to be determined. The material which has so far been produced to the respondents’ lawyers is extensive and is likely to enable BlueScope to gain a very clear understanding of the issues in the arbitration; the relative importance of particular issues; and the nature and source of the evidence tendered in the arbitration.

(4) The legal representatives of BlueScope and Merrill Lynch have also sought a copy of a further Interim Award or Ruling delivered in the arbitration. This award is dated 28 June 2010. As far as I know, this further award or ruling has not yet been provided to the respondents’ legal representatives, although it is very likely that it will be provided to those persons quite soon, whether or not the Notice to Produce is set aside.

(5) I have been told that the material required to be produced by the Notice to Produce is readily identifiable and has already been segregated. Although the contentious documents comprise approximately 7,500 folios, it would not be unduly burdensome for CKI to provide a complete copy of the contentious documents to BlueScope. As matters currently stand, most of the time, effort and expense of complying with the Notice to Produce would be directed to the task of copying those documents and not to their collection and review. The evidence led on behalf of CKI in support of its application to set aside the Notice to Produce contained a description of the contentious documents but did not descend into any detail at all as to the work that would have to be done by CKI to comply with the Notice to Produce; as to the time it would take to comply with the Notice to Produce; or as to the cost of doing so.

(6) The correspondence passing between CKI’s lawyers and the lawyers for the respondents contains assertions by the respondents’ lawyers to the effect that the proceedings in this Court constitute an abuse of process and are an attempt to re-litigate issues currently being litigated in the arbitration. These assertions are denied by the lawyers for CKI.

10. I have been told that the arbitrator is AR Galbraith QC, a New Zealand silk. I have also been told that the arbitration concerns (amongst other things) an Agreement for Sale and Purchase of shares dated 26 August 2008 (the Share Sale Agreement), the parties to which were: Toward (as vendor); NZ Steel (as vendor guarantor); Ironsands (as purchaser); and CKI (as purchaser guarantor).
11. The subject matter of the Share Sale Agreement was the whole of the issued capital (75,000,000 ordinary shares) of New Zealand Steel Mining Limited (NZ Mining), a company incorporated in New Zealand. The acquisition of NZ Mining by Ironsands gave to Ironsands control of a titanomagnetite (iron sands) deposit on land at Taharoa in New Zealand and of certain other valuable assets.
12. None of the parties has tendered in the present application any documents from the arbitration. Reference has nonetheless been made to some of those documents in the Written Submissions filed in respect of CKI’s application to set aside the Notice to Produce. The only documents referred to in the Consolidated Statement of Claim filed on 31 May 2010 in the consolidated proceedings in this Court which have been tendered in the present application are the Share Sale Agreement and an undated 2008 Confidentiality Agreement between CKI and Toward. This latter agreement relates to the provision of information by Toward and Merrill Lynch to CKI for the purposes of the sale of shares effected by the Share Sale Agreement.
13. In a letter dated 9 July 2010 from CKI’s lawyers to BlueScope’s lawyers, the following was said:

Cheung Kong Infrastructure Holdings Limited (CKI) v Bluescope Steel Limited
We refer to your letter dated 8 July 2010, which we received by email after office hours yesterday and which was not seen by us until today.
As we previously stated in our letter sent to you on 8 July 2010, CKI has no objection to New Zealand Steel Limited, Bluescope’s wholly owned subsidiary, providing arbitration documents to Bluescope. We confirm that this includes that CKI has no objection to Bluescope using the arbitration documents in pursuing its stay application in these proceedings. CKI had assumed that this position was clear and evident in the context.
As you have raised this matter in your Submissions in Reply, we have copied this letter to Justice Foster’s Associate.

14. It is common ground amongst the parties to the proceedings in this Court that NZ Steel is a wholly owned subsidiary of BlueScope and that Ironsands is a wholly owned subsidiary of CKI.

THE PROCEEDINGS IN THIS COURT

15. CKI commenced proceeding NSD 309 of 2010 on 25 March 2010. The only respondent to that proceeding at that time was Merrill Lynch. CKI commenced proceeding NSD 332 of 2010 on 31 March 2010. BlueScope was the only respondent to that proceeding at that time.
16. On 21 April 2010, I ordered that proceeding NSD 309 of 2010 and proceeding NSD 332 of 2010 be consolidated. A Consolidated Amended Statement of Claim was filed on 31 May 2010. That document contains CKI’s allegations against both BlueScope and Merrill Lynch. The respondents’ claims for a stay of proceedings or for summary dismissal are directed to the cases mounted by CKI against them in the Consolidated Statement of Claim. The relief claimed against each respondent is damages flowing from misleading and deceptive conduct in which each respondent is said to have engaged and which is said to constitute contraventions of s 52 of the Trade Practices Act 1974 (Cth) (the Trade Practices Act) or, alternatively, s 9 of the Fair Trading Act 1999 (Vic) (the Fair Trading Act), interest and costs.
17. The consolidated Amended Statement of Claim is lengthy. It is not necessary, for present purposes, to discuss in detail the cases pleaded against BlueScope and Merrill Lynch in that pleading.
18. The following matters form an important part of the allegations put against BlueScope:

(a) At all material times, NZ Steel was a wholly owned subsidiary of BlueScope;

(b) At all material times, Toward was a wholly owned subsidiary of NZ Steel;

(c) At all material times, NZ Mining was, until the events the subject of complaint in the proceedings in this Court, a wholly owned subsidiary of Toward;

(d) At all material times, NZ Mining carried on the business of mining iron sands on land known as Taharoa C Block;

(e) That mining business was sustained by supplying iron sands to four major customers;

(f) One of those four major customers, a company called Chengde Iron and Steel Group (Chengde), a Chinese company, accounted for approximately 50% of the annual sales made by the mining business conducted by NZ Mining at Taharoa C Block;

(g) In early 2008, NZ Steel and BlueScope had under consideration the possibility of selling NZ Mining and the business conducted by it at Taharoa together with other assets of NZ Mining;

(h) At all material times, BlueScope appreciated that Chengde might well be a potential purchaser of that business;

(i) NZ Steel and BlueScope appreciated that, in order to maximise the sale price of NZ Mining, it needed to secure long term commitments from its four major customers (especially Chengde);

(j) BlueScope was involved in the sale process;

(k) At various times throughout the sale process, BlueScope appreciated that a sale of NZ Mining to a purchaser other than Chengde might well detrimentally affect the future revenue to be earned by NZ Mining;

(l) Throughout the sale process, BlueScope appreciated that potential purchasers would be interested to know whether the anticipated future revenues of NZ Mining were reasonably stable and likely to continue and grow into the future;

(m) BlueScope failed to tell potential buyers that, if they were successful in their bid, both the existing short term and long term contracts with the major customers of the business would be in jeopardy, especially the contracts with Chengde;

(n) At various times during the sale process, BlueScope made express representations painting a rosy picture of the future of the business. In particular, it represented that the business was expanding with a stable customer base;

(o) In formulating its final bid, CKI made an assessment of the value of NZ Mining based upon information which it was given by BlueScope and its advisor, Merrill Lynch, and made assumptions as to the future stability of the business based upon the information with which it was provided, the representations made to it and an assumption which it reasonably made in all the circumstances to the effect that the stability of future revenues was not in jeopardy;

(p) The failure on the part of BlueScope to disclose that the future revenues of the business would be in jeopardy should a sale be made to someone other than Chengde was, in all the circumstances, misleading and deceptive and in breach of s 52 of the Trade Practices Act and s 9 of the Fair Trading Act;

(q) If CKI had known the true position, it would have withdrawn its bid or, alternatively, sought to negotiate a lower price and sought to change the terms of the Share Sale Agreement and not made concessions as to the terms of that Agreement which it in fact made; and

(r) In sum, CKI alleges that it was induced to enter into the Share Sale Agreement upon the terms of that Agreement by the misleading and deceptive conduct of BlueScope and Merrill Lynch.

19. I do not know anything about the claims made by CKI in the arbitration.
20. For instance, I do not know whether CKI sought to set aside the Share Sale Agreement or whether it has purported to rescind that Agreement. In the proceedings in this Court, it claims damages. The damages which it seeks appear to be the transaction costs and damages to its reputation and, in the event that it is required to pay the full purchase price by the ultimate award made in the arbitration, the damage flowing from that circumstance. It is not clear to me how that damages claim will ultimately be put or calculated.

THE SUBMISSIONS OF THE PARTIES

The Submissions Made on Behalf of CKI

21. It was submitted on behalf of CKI that:

(a) The Court should apply an appropriate test of relevance in determining whether or not the Notice to Produce should be set aside. That test is “... whether the documents sought in the Notice are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” (Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [5]–[12]; and Seven Network Ltd v News Ltd (No 11) [2006] FCA 174);

(b) In the circumstances of the present case, the documents are not likely, in the end, to add to the relevant evidence in the case. The “case” to which the documents must be relevant is the claim for relief made by BlueScope in its Notice of Motion filed on 7 July 2010. In other words, the documents must be likely to add relevantly to BlueScope’s claim that the proceedings should be stayed or summarily dismissed;

(c) The contentious documents are not necessary in order to enable BlueScope fairly to present its case for summary relief nor are they likely to add in any meaningful way to the relevant material which the Court will be called upon to consider when dealing with BlueScope’s claim that the proceedings should be stayed or summarily dismissed. This is because:

(i) BlueScope already has more than enough relevant material to mount its case for a stay or summary dismissal. It has all of the pleadings in the arbitration, all of the Written Submissions in the arbitration and the Interim Award dated 30 April 2010. This body of material arms BlueScope with more than enough evidence for it to prove the nature and extent of the issues in the arbitration and the nature, source and extent of the evidence tendered in the arbitration in order to enable it fairly and adequately to press its claims that the proceedings should be stayed or summarily dismissed;

(ii) In circumstances where the claim for a stay or summary dismissal is based upon the proposition that the present proceedings in this Court constitute an attempt to re-litigate issues litigated in the arbitration, it is the issues and the substance of the evidence going to those issues that are the relevant matters. Given the material which it already has, BlueScope is more than able to mount its case for a stay or summary dismissal without adding further to the material which it already has by gathering in the contentious documents; and

(iii) It is neither necessary nor desirable for the Court, when considering BlueScope’s application for a stay or summary dismissal, to undertake a detailed examination of all or a significant portion of the evidence tendered in the arbitration.

(d) The Notice to Produce is oppressive. In the Notice, BlueScope makes no attempt to target the additional material which BlueScope truly might require and, on the evidence before me, requires the production of a large body of irrelevant or marginally relevant material; and

(e) The Notice to Produce is vexatious given that CKI is content for BlueScope’s wholly owned subsidiary, NZ Steel and/or NZ Steel’s wholly owned subsidiary, Toward, to provide to BlueScope all of the documents deployed in the arbitration (which, of course, includes the contentious documents).

The Submissions Made on Behalf of BlueScope

22. It was submitted on behalf of BlueScope that:

(a) The current proceedings are an abuse of process because, in these proceedings, CKI seeks to re-litigate the factual matters dealt with in the arbitration at very substantial cost;

(b) The determination of whether the current proceedings constitute an abuse of process involves a precise identification of the issues in each set of proceedings and the nature and significance of the evidence in the earlier proceedings (Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 at 204 ([32]–[33]); and Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404). The focus of the Court needs to be on the substance of the two proceedings, rather than the form in which they were or are being pursued. This task involves a consideration of the type of evidence that would be called in the later proceedings and its overlap with the evidence actually led in the first proceedings (Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418);

(c) The Interim Award and the closing submissions of the parties to the arbitration demonstrate that three BlueScope employees, two NZ Steel employees and two CKI employees gave evidence in the arbitration on topics which are likely to overlap with the issues raised in these proceedings;

(d) Production of the witness statements, the transcript of the hearing and the tender bundle tendered in the arbitration is necessary so that BlueScope can identify precisely how the evidence given in the arbitration will overlap with the evidence that can reasonably be anticipated will be called in the proceedings in this Court. Production of the most recent Interim Award or Ruling (that dated 28 June 2010) is necessary in order to understand the basis upon which the damages part of the arbitration is now proceeding;

(e) Contrary to the submissions made on behalf of CKI, the documents are reasonably likely to add, in the end, in some way or another to the relevant evidence that is to be called in support of BlueScope’s application for a stay or summary dismissal;

(f) In order to avoid any allegation of oppression, BlueScope is prepared to arrange for its subsidiaries’ solicitors to provide the material called for by the Notice to Produce to its solicitors in the present proceedings by way of deemed compliance by CKI; and

(g) BlueScope is prepared to enter into appropriate confidentiality arrangements in order to respect all relevant confidentiality requirements.

CONSIDERATION

The Relevant Principles (Setting Aside the Notice to Produce)

23. Order 33 r 12 of the Federal Court Rules (FCR) is the source of the power which BlueScope exercised when it issued the Notice to Produce. That rule provides:

12 Production on notice — Form 45
(1) Where a party to any proceedings serves on another party notice, in accordance with Form 45, requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production.
(2) Where the document or thing required to be produced in accordance with subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing.
(3) Subrule (2) does not affect the power of the Court to order costs against a party who fails to comply with a notice under subrule (1).

24. There is a body of authority in this Court to the effect that a Notice to Produce served pursuant to O 33 r 12 FCR has the same coercive effect as a subpoena for production and that compliance with the Notice to Produce is mandatory unless production is excused by the Court or the Notice to Produce is set aside (Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3; (2002) 116 FCR 372 at [36] (p 380) and the cases cited in that par). The expression in O 33 r 12(1) “... unless the Court otherwise orders ...” provides the Court with express power to excuse a party served with a Notice to Produce from producing documents in answer to that Notice. It may also be apt to empower the Court to set aside a Notice to Produce served pursuant to O 33 r 12(1).
25. In the present case, CKI has relied upon O 27 r 4(1) as the source of the Court’s power to set aside the Notice to Produce.
26. Order 27 r 4(1) FCR provides as follows:

4 Setting aside or other relief
(1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

27. That rule does not refer to Notices to Produce nor, in my view, does it address Notices to Produce. For these reasons, it cannot be the source of the power which the Court has to set aside a Notice to Produce.
28. In addition to the express language of O 33 r 12(1), to which I have referred at [23] above, the Court also has power to regulate its own processes and that power includes the power to set aside a Notice to Produce. The existence of such a power seems to have been assumed by the Full Court in Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96 and also by Sackville J in Seven Network Limited v News Limited (No 5) 216 ALR 147 at [9]–[12] (pp 150–152).
29. The principles governing the exercise of the power to set aside a Notice to Produce or to excuse a party served with a Notice to Produce from producing documents in answer to that Notice are the same as the principles which govern the setting aside of a subpoena for production issued to a party. Those principles have been discussed in a number of cases in this Court.
30. In Mandic v Phillis [2005] FCA 1279; (2005) 225 ALR 760 at [28]–[38] (pp 770–774), Conti J discussed the relevant principles. After citing the well-known passage in National Employers’ Mutual General Association v Waind [1978] 1 NSWLR 372 at 381, where Moffitt P described the three distinct steps in the procedure for production of documents pursuant to a subpoena for production, his Honour said (at [33]–[37] (pp 771–774)):
    33. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 102 (Arnotts), Beaumont J stated that the issue of a subpoena would be an abuse of the process of the court if it is not used for a legitimate forensic purpose, referring thereby to the following passage in the reasons for judgment of Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–101:

Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2. where to require the attendance of a witness would be oppressive ...
3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5. where the subpoena has been used for the purpose of obtaining discovery against a third party ...
6. where to require a party to comply with a subpoena to produce documents would be oppressive ...
7. where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing”...

the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court. It seems to me, however, that when, as one does, one finds assertions that the court’s jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court ... coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive ... it is difficult to avoid the conclusion that, in reality, the court’s jurisdiction to set aside a subpoena is but one aspect of the court’s jurisdiction to act to prevent an abuse of process, and that particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.

34. Beaumont J also referred in Arnotts to a passage from the dissenting judgment of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502 ; [1989] HCA 21; 85 ALR 1 at 11 ; [1989] HCA 21; 15 ACLR 123 at 132 (Hamilton), in which their Honours discussed the inherent power of a court of superior record to control and supervise its process to prevent injustice:

The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but involves a consideration of the consequences of the proceedings for the person invoking the power. The terms “oppressive” and “vexatious” are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247–50 ; [1988] HCA 32; 79 ALR 9 at 45, per Deane J.

Hamilton involved a challenge to the exercise by the Supreme Court of New South Wales of its power to order a company director to be examined on any matters relating to the affairs of that company under s 541(3) of the Companies Code (NSW). Their Honours’ dicta is nevertheless descriptive of the inherent power of this court to set aside subpoenas that are abusive or oppressive: see Arnotts at ALR 102; Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110 at 114 (Hill J); Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (Stone J).

35. Drawing on Deane and Gaudron JJ’s above dicta, Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. His Honour enumerated two questions to be asked (at ALR 103 of his reasons for judgment):

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

36. His Honour (at ALR 103) referred to the meaning of “apparent relevance” in the following terms:

The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.

In Kimberley Homes at 115–16, Hill J referred with approval to Beaumont J’s test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material, the subject of the subpoena, would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Cmr for Taxation [1997] FCA 1504; (1997) 37 ATR 432, Spender J also considered Beaumont J’s test of “adjectival relevance” and explained it (at 439) as follows:

Notwithstanding the use of the word “possibly” in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.

As is the case presently before the court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a “fishing expedition”.

37. In determining whether a subpoena is an abuse of the court’s process, it is necessary to bear constantly in mind the need to balance the conflicting rights of the party to the proceedings, who has issued the subpoena, with those of the third party who now objects to it. The issuing party has a right to obtain access to documents in the hands of a third party in order to further the ends of justice, and so that he or she may, therefore, prepare a case meeting each issue arising in the proceedings. Compliance with a subpoena to produce may involve an invasion of the third party’s right to privacy, and his or her right accordingly not to be required to seek out, identify, collate and produce his or her documents to court, in circumstances where he or she has no interest in the proceedings: see R v Barton [1981] 2 NSWLR 414 at 419 (per Cantor J). In the present circumstances, compliance with the disputed parts of the RailCorp subpoena has the potential to reduce or extinguish the confidentiality the Institute has enjoyed over its trade secrets. Production of the relevant material has potentially serious implications also for public safety, were the methodology of the Institute’s psychological testing to became publicly known; moreover there is the possibility of Ms Phillis experiencing adverse psychological effects from release of the information. Balanced against that area of concern is the desire of Mr Mandic to obtain further material about Ms Phillis’ mental health as it was at or around the time she made her affidavit of 31 January 2005. The latter factor raises the question however as to why Mr Mandic, or his legal representatives, did not seek that information at some earlier time before Ms Phillis’ complaints came on for final hearing before the Federal Magistrate.
    
31. His Honour recognised that there were no rigid rules governing the exercise of the Court’s discretion to set aside a subpoena but that each case had to be considered having regard to the principles to which his Honour referred and to the circumstances of the particular case.
32. In Seven Network Limited v News Limited (No 5) 216 ALR 147 at [10], Sackville J said:
    10. Although the parties did not give detailed consideration to the test to be applied in the circumstances of the present case, they seemed to adopt the test used on an application to set aside a subpoena, namely whether the documents sought are of “apparent relevance to the issues” in the proceedings: National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385, per Glass JA (with whom Moffitt P and Hutley JA agreed). In Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, Waddell J said that in view of the analysis in National Employers v Waind and Hill, the test to apply in determining whether a subpoena is oppressive is whether the documents sought are:

... reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case.

His Honour observed (at 926) that it is difficult to formulate more precise criteria and that each case must depend on its own circumstances. In my view, this is the test that should be applied on the present motion: see Liberty Financial Pty Ltd v Scott [2004] VSC 382 at [32], per Smith J.

33. In my view, Sackville J expressed the relevance test which is to be applied when the Court is considering whether or not to set aside a subpoena for production or Notice to Produce as being whether the documents sought are of apparent relevance to the issues in the proceedings. His Honour fleshed out the concept of “apparent relevance” in this context by citing with approval and applying the remarks made by Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927.
34. In Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6], his Honour said:
    6. It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are ‘reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case’: Seven Network Ltd v News Ltd (No 5), at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.
       
35. His Honour added that the onus of demonstrating the apparent relevance of the documents required to be produced was on the party who issued the Notice to Produce.
36. The concept of oppression in this context was also helpfully summarised by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 101–102. In particular, at 102, his Honour cited and applied the passage from the joint judgment of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502 which was also cited by Conti J in Mandic v Phillis 225 ALR 76 at [34] (pp 772–773).
37. The application of the remarks of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; 166 CLR 486 requires that the Court ascertain the true purpose of the party issuing the subpoena or Notice to Produce and that the Court examine the impact of the subpoena or Notice to Produce upon the recipient.
38. The fundamental principle which drives all of the above statements of principle is that the Court should not permit its processes to be abused and should guard against the use of its compulsive powers as an instrument of oppression.

The Application of the Relevant Principles to the Present Case

39. As is apparent from the facts and matters noted at [9]–[14] above, the arbitration is well advanced. Liability has been determined and the Arbitrator is now moving to hear and determine all questions of damages or compensation. Other remedies may also be under consideration. I have been told that the remedies hearing is likely to take place in early 2011.
40. BlueScope has outlined its case for a stay or summary dismissal, in very broad terms, as follows:

(a) CKI and Ironsands brought five counter-claims in the arbitration. One of these claims comprises an allegation that Toward and NZ Steel breached two express warranties given by them in the Share Sale Agreement by failing to disclose to CKI and Ironsands certain information relating to the customers of NZ Mining;

(b) The subject matter of the alleged non-disclosure is the same subject matter which underpins the allegations in the proceedings in this Court to the effect that BlueScope (and Merrill Lynch) failed to disclose to CKI and to Ironsands material information concerning the customers of NZ Mining which failure amounted to misleading and deceptive conduct within the meaning of s 52 of the Trade Practices Act and s 9 of the Fair Trading Act;

(c) The non-disclosures could have been characterised as breaches of the New Zealand Fair Trading Act. Had they been so characterised, damages for those non-disclosures could have and should have been pursued in the arbitration;

(d) CKI is seeking to recover in the proceedings in this Court damages for at least some of the loss which it seeks to recover in its counter-claims in the arbitration; and

(e) By bringing proceedings in this Court, CKI is undermining the arbitration. It is seeking to re-litigate factual matters dealt with in the arbitration at very considerable cost. The Court should hold CKI to its promise to resolve all disputes in connection with the Share Sale Agreement by arbitration. It should also enforce the confidentiality provisions of the Share Sale Agreement.

41. There is insufficient material before me at the moment for me to assess the strength of BlueScope’s contentions in support of its claim for a stay or summary dismissal of the proceedings in this Court. I do not have any documents from the arbitration and I have not been taken to the relevant New Zealand law. It is apparent from CKI’s Written Submissions that there will be a vigorous contest when BlueScope and Merrill Lynch seek a stay or summary dismissal of the current proceedings.
42. For present purposes, I propose to assume (without deciding or assessing in any way) that BlueScope has an arguable case for a stay or for summary dismissal. It seems to me that, unless I decide that its case for a stay or summary dismissal is hopeless, this is the approach which I should take. CKI did not submit that I should conclude on the material before me that BlueScope’s case for a stay or summary dismissal is hopeless.
43. In its initial Written Submissions, BlueScope described the justification for the Notice to Produce in the following way:
    12. The determination of whether these proceedings are an abuse of process involves a precise identification of the issues in each set of proceedings and the nature and significance of the evidence in the earlier proceedings (Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 at 204 [32]–[33]). The focus is on the substance of the two proceedings, rather than form, and involves a consideration of the type of evidence which would be called in the later proceedings and its overlap with the first proceedings (Trawl Industries v Effem Foods (1992) 36 FCR 406 at 418 (Gummow J)).
    13. By the Amended Notice to Produce, BlueScope calls for production of the witness statements relied on in the arbitration, the transcript of the hearing, the agreed bundle of documents and any other documents tendered in the hearing and the second interim award of the arbitrator by which (it is understood) it was determined that NZS and Toward were not bound by an election to pursue specific performance.
    14. A review of the interim award and the closing submissions of the parties reveals that three BlueScope employees (Charlie Elias, Adrian Chng and Matthew Pond), two NZS employees (Martin Hacon and John Hetherington) and two CKI employees (Victor Luk and Eddy Tsang) gave evidence on topics that overlap with the issues raised in these proceedings.
    15. It is submitted that production of the statements, transcript and tender documents is necessary so that BlueScope can identify precisely how the evidence given in the arbitration will overlap with the evidence that can be anticipated will be called in these proceedings. Production of the interim award is necessary to understand the basis on which the damages part of the arbitration is proceeding.
        
44. In Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198, the purchasers of a business brought an action in the District Court of NSW against accountants who had prepared certain financial statements, claiming damages on the basis that the accountants had made negligent misrepresentations in those statements.
45. Some time earlier, the same plaintiffs (that is to say, the purchasers of the business) had sued the vendor of the business on the grounds that a warranty as to the accuracy of some of those financial statements had been breached and that, by annexing those statements to the contract for sale of the business, the vendors had misrepresented the true position and thus contravened s 52 of the Trade Practices Act. In the earlier proceedings against the vendor, the purchasers had succeeded in their contract claim but had failed in their claim pursuant to s 52 of the Trade Practices Act.
46. In the proceedings against the vendor, the trial Judge had found that the person who controlled the purchasers had not relied upon the accuracy of any of the figures in the financial statements annexed to the contract for sale of the business but had rather relied upon the contractual warranty to cover the position in the event that the figures turned out to be inaccurate.
47. In Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198, the accountants who were sued in the District Court moved to have the action in that Court permanently stayed on the basis that it was an abuse of process. The District Court Judge declined to grant the stay. The accountants appealed to the NSW Court of Appeal.
48. It was clear that the defendant parties in the two actions brought by the purchasers were different. It was thought that the doctrine of res judicata did not apply. It also appears that the appellant in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 took the view that the principles explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602 did not apply, although the Court of Appeal thought that this apparent concession may have been incorrectly made.
49. In the end, however, the case on appeal in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 was run upon the basis that neither the doctrine of res judicata nor the extended principles explained in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 were applicable. However, the Court of Appeal held that the principles in Reichel v Magrath (1889) 14 App Cas 665 at 668 did apply.
50. In Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 at [28]–[33] (pp 203–204), Handley JA said:
    28. The present proceedings are an attempt to litigate or re-litigate issues which were either decided in or are barred by the earlier proceedings. In substance, ignoring the camouflage, the purchasers are attempting to re-litigate the issue of reliance on the 1991 figures which they lost. If they cannot succeed against anyone in respect of the 1991 figures because they did not rely on them, they could hardly succeed in establishing reliance on the earlier figures.
    29. The judge also held that the issue of reliance on the expertise of the accountants had not been litigated in the Supreme Court and that a finding of reliance on that expertise would not conflict with the findings of Brownie J. This is true enough but ignored the fundamental fact that the purchasers would first have to prove that they relied upon the figures themselves before the question of reliance on that expertise could even arise. If they did not rely on the figures, they could not possibly have relied on the expertise required for their production.
    30. The substance of the matter therefore is clear. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on substantially the same evidence in the hope that this time Mr Hoefl will be believed.
    31. In Haines v Australian Broadcasting Corporation (at 414), Hunt CJ at CL distilled the following statement of principle from the authorities:

“There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath ... The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former ... It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued — by which I mean that ... the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance ... In normal circumstances, the decision disposing of the issue must have been a final one ... There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice ... all the circumstances of the determination in the earlier case may be considered ... .”

32. In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports ¶81–423 (64,077) at 64,089, another case involving abuse of process in seeking to re-litigate an issue, Giles CJ Comm D said:

“... The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are —
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and signifi­ cance of the evidence and the reason why it was not part of the earlier proceedings; ...
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”

33. These considerations, as Heydon JA pointed out in R v O’Halloran [2000] NSWCCA 528; (2000) 159 FLR 260 at 293, “turn on precise identification of the issues”.
    

Mason P and Heydon JA (as he then was) agreed with Handley JA.

51. BlueScope will invoke the principles explained in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 in support of its application for a stay or summary dismissal of the proceedings in this Court.
52. Those principles require the Court to focus upon the issues which are said to be in common between the two sets of proceedings under consideration. It is the re-litigation of issues that is the focus of the Court’s consideration.
53. In order to determine BlueScope’s application for a stay, the Court is required to compare the issues raised in the arbitration with those raised in the proceedings in this Court. In most cases, it would be inappropriate for the Court to look at the evidence in the earlier proceeding. There may be cases where looking at that evidence may be appropriate: For example, if there are no pleadings or no clear definition of the issues in the earlier proceedings; or if there are allegations that the case was conducted in a way which departed substantially from the pleadings; or if some exploration of the evidence was required in order to explain the judgment or the issues dealt with in the judgment. Even then, it is unlikely that evidence should be examined in any detail. Rather, it is most likely that the most that would be required is a relatively cursory examination of the evidence for the purpose of casting light on and clarifying the issues.
54. Neither party to the present application has placed before me for the purposes of this application any of the documents from the arbitration. In particular, BlueScope has not sought to persuade me that, by reference to the documents which it already has, those documents do not enable it to present fairly and adequately its case that the proceedings in this Court should be stayed or summarily dismissed. Indeed, BlueScope did not put its case on the basis that it needed the contentious documents in order to identify the issues in the arbitration. Rather, its submission was that it needed those documents in order to identify and understand where the evidence led in the arbitration might overlap with evidence likely to be led in the proceedings in this Court and that this was a legitimate purpose which justified the issue and service of the Notice to Produce.
55. If BlueScope wished to persuade me that it truly required the contentious documents in order to understand the issues raised in the arbitration, it should have tendered in evidence on the present application the documents which it already has and demonstrated to my satisfaction that those documents did not enable it fairly to present its case for a stay or summary dismissal. In that way it may have been able to persuade me that the evidentiary material which it seeks is reasonably likely to add, in the end, in some way or other, to the relevant evidence to be adduced in support of the relief which it claims in its Motion. It did not take this course. The onus was on BlueScope to establish the apparent relevance of the contentious documents in the sense explained by Sackville J in Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6]. It has failed to discharge that onus. It does not contend that it requires the contentious documents for the purposes of understanding the issues in the arbitration. It confined its attention to potential overlaps in the evidence. On the evidence before me, the Notice to Produce cannot be supported on the grounds upon which BlueScope seeks to support it.
56. The Notice to Produce is probably also oppressive or vexatious in the sense in which the High Court explained those expressions in Hamilton v Oades [1989] HCA 21; 166 CLR 486. Whilst it may readily be accepted that, for a large corporation such as CKI, arranging for the contentious documents to be photocopied and produced to BlueScope would not be unduly burdensome, the requirement that they be produced for a purpose which has not been sustained on the evidence before me constitutes oppression in the relevant sense.
57. I do not think that CKI has established that production would be unduly burdensome. Oppression in that sense has not been proven. Nor do I think that the description of the documents to be produced is imprecise, ambiguous or unlikely to be understood by CKI. The contentious documents are adequately described.
58. There are two classes of documents required to be produced under the Notice to Produce. The first class comprises evidence in the arbitration (pars 1 to 3). The document called for by par 4 (the Interim Award or Ruling made on 28 June 2010) is different in character from those documents which comprise the first group. In my view, that document should be produced because it is very likely to add to the relevant evidence to be adduced at the hearing of BlueScope’s application that the proceedings in this Court be stayed or summarily dismissed.
59. Accordingly, for these reasons, I propose to set aside pars 1 to 3 of the Notice to Produce but not par 4. Costs should follow the event.
60. In the circumstances, I do not need to consider how the various contractual and statutory confidentiality requirements imposed upon the parties to the arbitration and the parties to the proceedings in this Court might impact upon CKI’s capacity and willingness to produce the contentious documents.
61. I have also expressly refrained in these Reasons for Judgment from expressing any views as to whether NZ Steel and Toward might lawfully provide to BlueScope a copy of the documents described in pars 1 to 3 of the Notice to Produce in light of the clear terms of the letter from the lawyers from CKI to the lawyers for BlueScope dated 9 July 2010 (extracted at [13] above).
    

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 15 July 2010