A judge has whacked a suppression order on the ultimate David v Goliath court case – unemployed coal miner Simon Turner versus The Big Australian BHP. Michael West reports.
“A man who represents himself, has a fool for a client,” Abraham Lincoln said.
Lawyers are fond of quoting these words; for obvious reasons. Fees. Judges, for their part, are loath to entertain the distasteful prospect of a simple commoner approaching the Bench sans representation.
And as for their Learned Friends at the Bar table, there would be one to their side, no other Learned Friend with whom to share their witticisms and test their blistering erudition.
Fair enough too. How tedious it would be for a judge to explain the Rules of Evidence to some interloper from the hoi polloi, some ordinary citizen who didn’t even speak their language.
Heaven forbid. Yes, “the system of justice is open to all, just like the Ritz Hotel”, as they say); but in practice plaintiffs self-representing is very rare.
And in the remote event – we’ve not heard of it in the higher courts – that a judge were to award a decision to such an outsider, some unrepresented member of the proletariat – against a mining giant attended by a dandy retinue of wigs and gowns – it would be deemed catastrophic.
Surely, such a plaintiff would precipitate a stampede of bumpkin litigators through the courts. To have a crack themselves. Without lawyers. Ghastly!
Plebs who couldn’t tell their ass from their tits, sorry, their a priori from their res ipsa loquitur telling the judge about their feelings.
Ipso facto, it doesn’t happen, or rarely does.
David v the Goliaths. Lone coal miner tackles BHP & co in Court over massive wage theft
In this rare instance however, in the matter of Simon Turner v Chandler Macleod Group, BHP. BHP Mt Arthur Coal, Hunter Valley Energy Coal and Coal Mining Industry (Long Service Leave Funding) Corporation – phew – it has. Or if Turner has found a lawyer, and we are not sure of it, the scales of justice remain tilted in BHP’s favour due to the resource mismatch. Think Dennis Denuto v The Crown.
So, in this rare instance, it would be very surprising – given what we have seen of BHP’s shonky industrial relations practices – if cross examination were ever to see the light of day.
Publicity risks
Indeed, the judge has already granted BHP a suppression order. Details to come but suffice to say that this by no means tilts the hallowed scales of justice in favour of the underdog.
It’s likely that BHP and its phalanx of counsel will just pay Turner to go away and be done with it.
Don’t risk the publicity.
As the story linked above shows, there is some hairy detail in this claim which the mining establishment would hardly wish to be tested in open court, thence see washing about in the public domain.
Especially as there are thousands of other miners in similar circumstances, dudded by BHP, its myriad labour hire firms, lawyers and other hangers-on-erers – the whole sordid affair would need to be stitched up tightly by an NDA (non disclosure agreement).
There is also the tricky matter of thousands of workers apparently going without their long service leave payments.
Government to coal giants: pay your workers’ entitlements if you like
Ripped off
Turner, who broke his back in a work accident at Mt Arthur in 2015 (despite being classified as a white collar worker) has been fighting for the past decade to be paid. Story here.
“[The contracts] were all done illegally. “I was living below the poverty line for over six years … my full pay under the Award should be $137k a year. I was being paid $400 a week!” he told MWM in 2024.
He would appear to have a strong case. But who would take on such a case pro bono against the might of BHP? What lawyer?
Well, some might take it ‘on spec’ and some have indeed taken it on spec but, agonisingly close as he got to having the case heard in 2018, as if magically, Turner’s previous lawyers, just before his matter could be heard before a judge, did not manage to get their client’s case quite … into court.
Although they did go on to forge prosperous careers nonetheless. Good for them, not for Simon Turner.
So it is that Turner feels he has been dudded by lawyers one too many times, and he has no money to pay for more lawyers. But he does have grit and finally has made it to Court.
Heavy claims
The battle is set to be heard before Justice Needham in the Federal Court on Thursday morning this week. Alas, the suppression order buried in the Christmas rush.
This would appear to be a gift to BHP because Turner alleges, besides the facts of his own underpayment by the $250B company, a $2B wage theft rort affecting hundreds of casually employed coal miners across numerous mines operated by multinational coal companies.
Unlawful record tampering, concealment of evidence and mine safety issues to boot. Not the sort of dirty laundry BHP and its labour hire associates would wish in the public domain.
Turner claims that BHP and its partners conspired to misclassify workers as “casuals” to pay them significantly less than the required industry award rates, while they were performing the same work as permanent staff.
The big muzzle
The observations made by barrister Ian Latham on the confidentiality issues in a LinkedIn post are worthy of airing. Mostly because, the courts are supposed to hold dear to the principle of ‘open justice’.
“The Federal Court was faced with a number of applications for confidentiality in Turner v Macleod Group Limited (Interim Suppression Order) [2025] FCA 1599. The BHP respondents sought confidentiality and non-publication or suppression orders over a number of documents set out in the Originating Application. Those documents included the applicant’s Originating Application and an Affidavit of the applicant.”
The Court noted at [11] that:
The BHP respondents’ concern is that, as Mr Turner’s Originating Application alleges unlawful actions such as bad faith, concealment of Mr Turner’s employment terms, and “false, misleading and unlawful” actions, and given the position expressed by the first respondent as to the proceedings being an abuse of process, it 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.
The Court then held at [12] that:
Suppression or non-publication orders should only be made in exceptional circumstances… The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle.
The Court concluded at [17], [18] that:
I have reached a point of satisfaction that, on the very limited material available to me, the respondents’ position as to the overlap between various historical litigation between the parties is not unarguable. Accordingly, it may be that for the documents currently on the court file to be released would give a misleading or incomplete version of the conduct of the respondents in relation to Mr Turner.
I have therefore determined that while open justice is an important consideration, it is not the only consideration in making these kinds of orders. In my view, the public interest may be undermined if settlement documents which are otherwise confidential can be viewed and reported on where the parties have agreed that terms should be confidential as part of the terms of their settlement
Needham J went on to make interim confidentiality orders.”
It is “not unarguable either” that this is a gift to BHP. Not that it might affect the impartiality of the Judge. Rather, that it would seem to be in the public interest that the gravity of these claims be heard, not to mention in the interests of other coal miners who have been dudded by underpayments too; but don’t know about it.
Further, it serves the interest of BHP’s public relations that the claims are muzzled while it hardly serves Simon Johnson’s interests in the event that the claim were to be heard. Another lawyer were to hear about it and decide to take it on.
BHP has endless depth of pockets to fight this case. Simon Turner doesn’t have two bob to rub together. This is like giving Goliath a shotgun as back-up for his sword, or swapping rocks for dandelions in David’s sling-shot.
BHP’s big wage theft unveiled – the whistleblower and the coal miner