In short – yes.
Justice Derrington’s recent decision in South32 Aluminium (RAA) Pty Ltd v Siemens Ltd [2026] FCA 399 confirms this position.
South32 is suing Siemens in the Federal Court in relation to damage occasioned by the failure of a steam turbine generator at a Western Australian power station which it alleges was caused by a missing piece of safety code in the control software.
The decision concerned a dispute in which between South32 and Siemens about discovery.
Siemens argued it did not have to discover certain documents because they were created and held by a related but separate company, Siemens Industrial Turbomachinery AB (SIT), which supplied personnel relevant to the project under a framework arrangement and pursuant to purchase orders.
The central issue was whether documents in SIT’s possession were within Siemens’ “control” for the purposes of discovery.
There was no dispute between the parties that there were document were within the scope of the discovery ordered by the Court.
Relevantly the ‘Framework Agreement’ between Siemens and SIT included the following contractual clause:
“21.3. [SIT] must disclose to Siemens any significant material which [SIT] and/or the [SIT’s] Personnel create in the course of providing the Work at the time of its creation.”
The ultimately, Court held that Siemens did have control and therefore had to discover documents in SIT’s possession because:
in any event, Siemens had contractual rights to inspect the documents under the Framework Agreement.
Orders were made for further and better discovery by Siemens and for a director of Siemens to make an affidavit explaining Siemens’ conduct concerning earlier discovery (of which Justice Derrington was highly critical).
The decision underscores that documents within an organisational group are likely in another party’s control and therefore discoverable/producible in the context where an agency relationship and/or enforceable inspection rights exist. Further, the assessment of whether a related party is an agent is highly fact dependent and requires consideration of any contractual documents.
The practical take away is that when considering what work is required to comply with orders for discovery, a subpoena or a notice to produce, the recipient needs to consider their relationships with other parties (specifically related parties) which may hold documents within the scope.
This article was written by Jordan Hurley, Senior Associate Disputes.