UIL Singapore Pte Ltd v Wollongong Coal Limited - Access to Restricted Documents

Original Word Document (83.3 KB) Federal Court of Australia

UIL (Singapore) Pte Ltd v Wollongong Coal Limited (No 4) [2026] FCA 370

| File number: | VID 312 of 2020 |
| | |
| Judgment of: | BENNETT J |
| | |
| Date of judgment: | 27 March 2026 |
| | |
| Catchwords: | PRACTICE AND PROCEDURE – request for access to restricted documents by a non-party under r 2.32(4) of the Federal Court Rules 2011 (Cth) – objections by applicant and respondent to the release of documents – principle of open justice – where restricted documents are written submissions relied upon in open court – no basis for refusing leave to inspect restricted documents – request for access to documents granted |
| | |
| Legislation: | Federal Court Rules 2011 (Cth) r 2.32

Access to Documents and Transcripts Practice Note (GPN-ACCS) |
| | |
| Cases cited: | Australian Securities and Investments Commission v Marco (No 20) [2026] FCA 67

Castle v United States [2018] FCA 1079

Russe l l v Russell (1976) 134 CLR 495 |
| | |
| Division: | General Division |
| | |
| Registry: | Victoria |
| | |
| National Practice Area: | Commercial and Corporations |
| | |
| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |
| | |
| Number of paragraphs: | 20 |
| | |
| Date of last submission/s: | 17 March 2026 |
| | |
| Solicitor for the Applicant: | HFW Australia |
| | |
| Solicitor for the Respondents: | Thomson Geer |
ORDERS

| | | VID 312 of 2020 |
| | | |
| BETWEEN: | UIL (SINGAPORE) PTE LTD

Applicant | |
| AND: | WOLLONGONG COAL LIMITED (ACN 111 244 896)

First Respondent

WONGAWILLI COAL PTY LTD (ACN 111 928 762)

Second Respondent

JINDAL STEEL AND POWER LIMITED

Third Respondent | |

| order made by: | BENNETT J |
| DATE OF ORDER: | 27 March 2026 |
THE COURT ORDERS THAT:

1. Leave is granted to David Dickens of Hall & Wilcox to inspect and copy the following documents filed in proceeding VID 312 of 2020:

(a) Outline of submissions dated 10 November 2025 filed by the Applicant.

(b) Outline of submissions dated 24 November 2025 filed by the Respondents.

(c) Outline of submissions dated 1 December 2025 filed by the Applicant.

(d) Closing submissions filed by both parties on 3 February 2026 and closing submissions in reply filed by both parties on 6 February 2026.

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

REASONS FOR JUDGMENT

BENNETT J:

1 A non-party has made an application for leave to inspect restricted documents on the Court file under r 2.32(4) of the Federal Court Rules 2011 (Cth) (Rules). For the reasons explained below I have decided to grant leave to allow the documents requested to be inspected and copied.

Background

2 This proceeding was commenced in 2020. There was a previous request for non-party access to certain restricted documents in the proceeding in 2025. That request was refused. At the time that request was refused, the documents sought had not been read or relied upon in open court.

3 The trial in this proceeding commenced on 8 December 2025 and judgment was reserved on 10 February 2026. Judgment remains reserved. On 10 February 2026, a request for non-party access to certain documents was received by a Judicial Registrar. The request did not initially attach documents referred to, and these were sought by the Judicial Registrar. Accordingly, the request reached my Chambers on 20 March 2026.

4 The request for access is made by Hall & Wilcox who act for Trafigura Pte Ltd and Trafigura India PVT Ltd (Trafigura). These companies are involved in a proceeding in the Commercial Court of England and Wales against, among other parties, UIL (Singapore) Pte Ltd (the Applicant in these proceedings) (the Trafigura Proceedings).

5 The documents sought to be inspected are:

(1) outline of submissions dated 10 November 2024, filed by the Applicant;

(2) outline of submissions dated 24 November 2024, filed by Wongawilli Coal Pty Ltd;

(3) outline of submissions dated 1 December 2024, filed by the Applicant;

(4) closing submissions filed by both parties on 3 February 2026 and closing submissions in reply filed by both parties on 6 February 2026,

(together, the Requested Documents).

6 There appears to be an error in the request, in the sense that the written submissions identified in sub-paragraphs (1)-(3) above were filed on 10 November, 24 November and 1 December 2025, respectively. Given that no submissions were filed on those dates in 2024, it is tolerably clear that the request should refer to the documents filed in 2025. I treat the request as a request for those documents. It may also be noted that the outline of submissions dated 24 November 2025 was filed on behalf of all the Respondents, not just the Second Respondent.

7 All of the Requested Documents were referred to and relied upon in the course of the trial of the proceeding. The trial was conducted in open court. There were no relevant suppression orders sought or obtained in relation to the Requested Documents.

Relevant Principles

8 Rule 2.32(2)-(4) of the Rules concern non-party access to documents in a proceeding of this Court. It relevantly provides:

(2)     A person who is not a party may, after the earlier of the first directions hearing and the hearing, inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross-claim;

(b)    a pleading or particulars of a pleading or similar document;

(c)    an interlocutory application;

(d)    in a proceeding to which Division 34.7 applies:

(i)     an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)    an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar.

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)     be confidential; or

(b)     is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note: For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

(4)     Subject to subrule (3), a person may apply to a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect.

9 The Rules identify that certain documents, being those listed at rule 2.32(2)(a)-(d), are accessible by any non-party after the first directions hearing as of right. Rule 2.32(4) permits a person to apply for leave to inspect documents that they are not otherwise entitled to inspect. The Requested Documents, being written submissions, fall within the scope of rule 2.32(4) and can be inspected only by leave.

10 Considering the circumstances involved in granting leave involves recognising the principal of open justice, explained by Gibbs J in Russe l l v Russell (1976) 134 CLR 495 at 520 (citations omitted):

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’.  This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.  Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.  The fact that courts of law are held openly and not in secret is an essential aspect of their character.  It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’.  To require a court invariably to sit in closed court is to alter the nature of the court.’

11 This principle is reflected in the Access to Documents and Transcripts Practice Note (GPN-ACCS) at [4.3]:

In relation to restricted documents, access will generally be given where documents have been read in open Court.

12 Thus, it is generally accepted that  leave will generally be granted to inspect a document (including an affidavit) if the document has been read or relied upon in open court (Au stralian Securities and Investments Commission v Marco (No 20) [2026] FCA 67 at 19 and the cases cited therein).

13 In Castle v United States [2018] FCA 1079 (Castle) at [17]-[18], Mortimer J (as her Honour then was) made clear that the presumption that affidavits “read” in open court should be available for inspection also applied to written outlines of submissions filed by parties and relied on in Court. Her Honour explained at [18]:

Thus, where an affidavit has been “read” in open court, there is a strong presumption that any member of the public should be given leave to inspect it: see Baptist Union of Queensland — Carnity v Roberts [2015] FCA 1068; 241 FCR 13 at [28]–[29], [33]–40 and the authorities there cited. The same can be said for written outlines of submissions filed by parties and relied on in Court. Where court proceedings are entirely oral, as occurred in superior courts more frequently in the past, then the evidence would have been spoken in open court, and the submissions would have been made orally in open court. All present could hear them, repeat them and report on them, so long as the reporting was fair and accurate. The move to giving evidence, and making submissions, in writing should not obscure the fact that evidence and submissions are still presumptively treated as being given in open court.

14 In this instance, the Requested Documents are all of a kind that have been relied upon in open court in a hearing that was conducted in open court, with no suppression orders in place.

Consideration

15 Each of the parties opposed inspection. The Respondents stated:

Consistent with its position in respect of previous requests, the Respondent’s preference is for the documents not to be released to a third party. It has no further submissions to make on the matter.

16 The previous request concerned documents that had not been relied upon in open court. Different considerations apply.

17 The Applicant also opposed leave to inspect the Requested Documents being granted, stating:

In mid-January we were asked by Hall & Wilcox to agree to the voluntary provision of these documents.

We responded to Hall & Wilcox on 22 January to state: "So that we may take instructions, what is the basis for your client wanting to see such documents. I can't see the relevance of them to the Trafigura matter."

Rather than respond with reasons, they made their request to the Court.

I have reviewed the request and the reasons for production of the "Restricted Documents" are not sufficient in my view.

At para 3 in section 6.3 of their application, they reference that the assets said to have been covered by the WFO "… may include UIL Singapore's rights and interests in claim no. VID213/2020 (the "Australian Claim")." That is vague.

At para 4 in section 6.3 of their application, they state their concern was: "Any attempts to dispose of or settle the claim in the midst of trial may constitute dealing with (and possibly, diminishing the value of) an asset for the purpose of paragraph 3 of the WFO."

Obviously, that did not happen so that reasoning falls away.

Now that UIL is in liquidation (which Hall & Wilcox omitted to mention in their application to the court), even if their client did succeed in its claim in the English courts, it would be an unsecured creditor who would need to prove their debt in the liquidation like all other creditors – it is well settled in English law (which Hall & Wilcox should be aware of) that you can’t use a freezing order to make yourself a secured creditor.

For these reasons, we would respectfully offer our view that the Court should not entertain the request for "Restricted Documents."

18 The premise of the Applicant’s submission, that the non-party requestor must identify an interest sufficient to justify access, is misconceived. The Requested Documents have been relied upon in open court and public confidence in the administration of justice requires that significance is given to transparency in respect of these matters. The use of written submissions in lieu of oral submissions does not detract from this principle (Castle at [18]).

19 No suppression order was sought in respect of any material in the Requested Documents at the time that they were filed, nor when they were referred to in open court, nor as at the date of these reasons. The objections raised by the parties do not disclose any reason that might justify non-disclosure of the Requested Documents in circumstances where they were read and relied upon in open Court.

Conclusion

20 I am satisfied that it is appropriate that leave be granted to inspect and copy the Requested Documents.

| I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. |
Associate:

Dated:    27 March 2026

Top