South32 Aluminium (RAA) Pty Ltd v Siemens Ltd

This judgment sits inside a larger commercial dispute about the destruction of industrial equipment. South32 alleged that Unit 6, a steam turbine generator at Worsley in Western Australia, overheated on 24 October 2015 and was effectively destroyed. The Court recorded that later investigations identified a missing piece of code in the unit’s programmable logic controller software. According to South32, that missing code would have triggered the generator circuit breaker and prevented the overheating. In the proceeding, that issue was called the Software Flaw.

South32’s claims against Siemens were broader than a simple contract complaint. They included allegations of misleading or deceptive conduct, negligence and breach of contract connected with commissioning work, an Installation and Commissioning Manual, a 2014 software upgrade and a 2015 safety inspection. Siemens’ defence, as summarised by the Court, was that several important parts of the work had actually been carried out by Siemens Industrial Turbomachinery AB, or SIT, a related entity. Siemens said SIT commissioned Unit 6, prepared the manual and pre-configured software used in the upgrade.

That defence created a practical litigation problem. Earlier discovery orders had already required Siemens to discover relevant documents. It was not disputed that documents existed which matched those categories. The dispute was whether Siemens had to discover documents generated by SIT personnel, even though Siemens said those documents belonged to a separate corporate entity.

The documents in issue were described as SIT-generated documents. They covered work connected with the installation and commissioning of Unit 6, the production of the Installation and Commissioning Manual, the 2014 software upgrade, the 2015 borescope and safety inspection, and documents relating to the Software Flaw or the casualty itself. The Court made clear that these categories were already within the scope of earlier discovery orders made in November 2022 and June 2024. So relevance was not the real fight.

The real fight was control. South32 applied for further and better discovery and also sought an affidavit from an appropriate Siemens representative explaining the steps taken to comply with discovery obligations. Siemens resisted on the basis that it did not physically possess the documents and that they were held by SIT, a separate corporate entity. South32 argued that this was too narrow a view because the work had been done for Siemens and under arrangements that gave Siemens rights over the resulting records.

The Court therefore had to decide whether Siemens had possession, custody or power over the documents for the purposes of the Federal Court Rules. That issue often matters in modern business structures, especially where work is delivered through secondments, labour-sharing arrangements, overseas technical teams or related entities within the same corporate group.

The legal issue was whether Siemens had control of documents generated by SIT employees for the purposes of discovery. The Court said there was no real dispute about the governing principles. Under the Federal Court Rules, control means possession, custody or power. Because Siemens did not physically possess the SIT-generated documents, the question became whether it had a presently enforceable right to obtain possession of them or inspect them, or an actual and immediate ability to inspect them.

The Court also restated an important limit. A mere expectation that another person might cooperate is not enough. If inspection depends on a third party agreeing to permit access, that will usually not amount to control. But the Court also identified an important qualification for agency relationships. Where documents are in the possession or power of an agent, they may be treated as being within the principal’s control. Likewise, if an agent creates documents in the course of acting for the principal, those documents may be documents the principal can require to be produced.

That made the contractual and practical relationship between Siemens, SIT and the transferred SIT employees central to the application. The Court examined the framework agreement, the purchase orders and the way the personnel were supplied and directed.

The Court’s reasoning turned heavily on the terms of a Framework Agreement entered into on 1 April 2010 between Siemens and SIT. The judgment says that agreement provided for SIT to transfer personnel to Siemens to assist with Siemens’ projects in Australia. Under the general conditions in Appendix 2, the leased personnel were subject exclusively to the instructions of Siemens during their deployment, were required to report to Siemens, and were to be integrated into Siemens’ working procedures. The Court also noted clause 3 of the Framework Agreement, which stated that for the purpose of providing the services, SIT was acting solely as an agent on behalf of Siemens.

On that material, the Court concluded that, for the purposes of the application, Siemens had a right to possession of the SIT-generated documents because they were created by its agents. The Court identified two agency relationships on the available evidence. First, between Siemens and SIT. Secondly, between Siemens and certain SIT employees who had been transferred to work on Siemens’ Australian projects. The Court reasoned that documents produced by those workers in the course of that work were held for Siemens as principal.

The Court then dealt with a complication. Some later purchase orders, including one dated 13 June 2014, contained terms saying the relationship between the parties was one of independent contractor and that nothing in the agreement was intended to create an agency, partnership, joint venture or fiduciary relationship. The Court accepted that these terms had to be considered, especially because purchase order terms could prevail over inconsistent terms in the Framework Agreement.

Even so, the Court was not persuaded that this ended the matter. On the available evidence, the practical relationship remained that SIT employees were provided to Siemens to undertake work Siemens was required to perform under its agreement with South32. The Court said the employees were given access to the work, Siemens facilitated that work, and they were authorised to do it on Siemens’ behalf. The judgment also referred to intellectual property provisions in the post-June 2014 terms, including assignment of IP rights created for Siemens and an obligation to disclose significant material created in the course of the work. Those features supported the conclusion that Siemens had rights over the resulting materials.

Derrington J granted South32’s application. The Court ordered Siemens to make further and better discovery within 28 days of all documents generated by SIT employees in connection with the installation and commissioning of Unit 6, the production of the Installation and Commissioning Manual, the 2014 software upgrade, the 2015 safety inspection, and the Software Flaw or the casualty, to the extent those documents were created, produced or brought into existence for the purposes of performing the work in issue for or on behalf of Siemens.

The Court’s reasoning, as stated in the judgment, was that the arrangements between Siemens and SIT did not place the documents beyond Siemens’ control. On the contrary, the documents were produced in the course of agency relationships between Siemens and SIT, and between Siemens and the relevant SIT employees. The Court also said that even if no agency existed, Siemens had the benefit of a contractual right to inspect the documents. That was enough to place them within Siemens’ control for discovery purposes.

The Court also expressed concern that Siemens’ conduct in relation to discovery strongly suggested that either Siemens or its advisers may have misunderstood the nature of its discovery obligations. Because of that, the Court considered it appropriate to require a detailed affidavit explaining the steps taken to locate discoverable documents.

The affidavit order is one of the most practical parts of this case for businesses. Siemens was ordered to have a director file and serve an affidavit setting out the steps taken to locate discoverable documents. The order required specifics, not general assurances. It asked for the names of personnel whose email accounts were searched, details of other archives, databases and repositories searched, the total number of documents held in each source, the names of personnel whose accounts were unavailable, the search terms and limitations used, and the circumstances in which unavailable accounts became unavailable. It also required details of any retrieval efforts for archives or back-up copies.

That level of detail matters because discovery is often tested by process. A party may lose credibility if it cannot explain where it looked, what it searched and why some obvious sources were not reviewed. For business owners and in-house teams, the lesson is straightforward. If litigation is underway, keep a written record of the search process from the beginning. Identify key custodians, preserve email accounts, map repositories, note search terms and record any technical limitations or data loss issues.

For smaller businesses, this does not require a large legal operations function. It does require discipline. A simple litigation hold process, a list of relevant staff, a clear project folder structure and a documented archive policy can make a major difference if the Court later asks how discovery was done.

This is not a final ruling on whether Siemens is liable to South32 for the casualty. It is a discovery decision. But it is still commercially important because discovery often shapes the whole course of a case. If key records are found, they may strengthen one side’s liability case or defence. If records are missing, inaccessible or poorly managed, that can increase cost and pressure.

The main business point is that courts may look past formal corporate separation when deciding document control. If related-entity staff were effectively doing your company’s work, under your company’s direction, and your contracts give your company rights over the resulting materials, the documents may be treated as within your control. Labels such as independent contractor may not be decisive if the practical reality points the other way.

This matters well beyond large industrial disputes. The same issue can arise in software projects, engineering work, managed services, consulting, manufacturing support and cross-border technical assistance. Many businesses use one entity to contract and another to supply specialist staff. If that is your model, your contracts, document systems and retention settings should match the reality of how the work is done.

It is also worth noting the cost consequence. Siemens was ordered to pay South32’s costs of the application. Discovery fights can therefore become expensive side disputes if a business takes too narrow a view of what it controls.

Do related-company documents always have to be produced? No. The Court’s focus was on control, not mere corporate connection. A related entity’s documents are not automatically discoverable just because the entities are in the same group.

What made control easier to establish here? The Court pointed to the framework agreement, the direction and integration of transferred personnel, the agency wording, and contractual features such as inspection and IP provisions.

Can a business rely on independent-contractor wording? Not safely on its own. The Court examined the practical reality of the arrangement and did not treat the label as conclusive.

What if records are held overseas? The judgment shows that location is not the only issue. If the Australian party has a present right or ability to obtain or inspect the records, they may still be within control.

What should be preserved first when litigation starts? Usually the key custodians, project email accounts, shared drives, technical reports, manuals, software records and any archived accounts connected with the work in dispute.

The judgment was delivered by Derrington J in the Federal Court of Australia on 10 April 2026. The hearing date recorded in the judgment was 4 March 2026. The orders required Siemens to provide further and better discovery, and the director’s affidavit, within 28 days of the order date.

This page explains the interlocutory discovery ruling only. The broader proceeding involved allegations of misleading or deceptive conduct, negligence and breach of contract, but those substantive issues were not determined by this judgment.

Some later parts of the published reasons are not visible because the text available here is truncated near the end. The key orders and the central reasoning on control, agency and contractual inspection rights are, however, clearly stated.