Alinta Sales Pty Ltd v Woodside Energy Ltd
[2008] WASC 304
•17 DECEMBER 2008
ALINTA SALES PTY LTD -v- WOODSIDE ENERGY LTD [2008] WASC 304
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 304 | |
| 21/12/2008 | |||
| Case No: | ARB:8/2008 | 17 DECEMBER 2008 | |
| Coram: | BEECH J | 16/12/08 | |
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Applications granted | ||
| B | |||
| PDF Version |
| Parties: | ALINTA SALES PTY LTD (ACN 089 531 984) WOODSIDE ENERGY LTD (ACN 005 482 986) BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD (ACN 004 514 489) BP DEVELOPMENTS AUSTRALIA PTY LTD (ACN 081 102 856) CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757) SHELL DEVELOPMENT (AUSTRALIA) PROPRIETARY LIMITED (ACN 009 663 576) NORTH WEST SHELF GAS PTY LTD (ACN 063 763 342) ALINTA SALES PTY LTD |
Catchwords: | Practice and procedure Subpoenas of documents Application for leave to issue subpoena for early return before hearing of an arbitration Turns on own facts |
Legislation: | Commercial Arbitration Act 1985 (WA), s 17 Rules of the Supreme Court 1971 (WA), O 36B r 3(6) |
Case References: | AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366 Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 Australian Gas Light Co v Australian Competition & Consumer Commission [2003] ATPR 41-956 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 Darbyshire v Gilbert (2006) 31 WAR 558 Queensland Power Trading Corp v Xstrata Queensland Ltd [2005] QCA 477 Stanley v Layne Christensen Co [2004] WASCA 50 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
WOODSIDE ENERGY LTD (ACN 005 482 986)
BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD (ACN 004 514 489)
BP DEVELOPMENTS AUSTRALIA PTY LTD (ACN 081 102 856)
CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757)
SHELL DEVELOPMENT (AUSTRALIA) PROPRIETARY LIMITED (ACN 009 663 576)
NORTH WEST SHELF GAS PTY LTD (ACN 063 763 342)
Respondents
(Page 2)
FILE NO/S : ARB 10 of 2008 MATTER : Commercial Arbitration Act 1985 (WA)
BETWEEN : WOODSIDE ENERGY LTD (ACN 005 482 986)
- BHP BILLITON PETROLEUM (NORTH WEST SHELF) PTY LTD (ACN 004 514 489)
BP DEVELOPMENTS AUSTRALIA PTY LTD (ACN 081 102 856)
CHEVRON AUSTRALIA PTY LTD (ACN 086 197 757)
SHELL DEVELOPMENT (AUSTRALIA) PROPRIETARY LIMITED (ACN 009 663 576)
NORTH WEST SHELF GAS PTY LTD (ACN 063 763 342)
Applicants
AND
ALINTA SALES PTY LTD
Respondent
Catchwords:
Practice and procedure - Subpoenas of documents - Application for leave to issue subpoena for early return before hearing of an arbitration - Turns on own facts
Legislation:
Commercial Arbitration Act 1985 (WA), s 17
Rules of the Supreme Court 1971 (WA), O 36B r 3(6)
Result:
Applications granted
(Page 3)
Category: B
Representation:
ARB 8 of 2008
Counsel:
Applicant : Mr G H Murphy SC & Mr S J Davis
Respondents : Mr M C Goldblatt & Mr S M Standing
Solicitors:
Applicant : Blake Dawson
Respondents : Freehills
ARB 10 of 2008
Counsel:
Applicants : Mr M C Goldblatt & Mr S M Standing
Respondent : Mr G H Murphy SC & Mr S J Davis
Solicitors:
Applicants : Freehills
Respondent : Blake Dawson
Case(s) referred to in judgment(s):
AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Australian Gas Light Co v Australian Competition & Consumer Commission [2003] ATPR 41-956
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Darbyshire v Gilbert (2006) 31 WAR 558
Queensland Power Trading Corp v Xstrata Queensland Ltd [2005] QCA 477
Stanley v Layne Christensen Co [2004] WASCA 50
(Page 4)
- BEECH J:
(This is an edited version of the extempore reasons for decision given on 17 December 2008.)
Introduction
1 There are two proceedings before me. In each proceeding the applicants seek leave to issue subpoenas to a number of companies requiring them to produce documents before the date for hearing of an arbitration. The applicants are parties to the same arbitration.
2 Many of the proposed subpoena recipients have objected to the grant of leave. Where an objection has been filed, the application for leave to issue a subpoena to the objecting recipient has been programmed to a hearing next year. Where no objection has been filed, the application has proceeded today ex parte.
3 Any decision by me to grant leave is without prejudice to a recipient's right to apply under the Rules of the Supreme Court 1971 (WA) O 36B r 4 to set aside the subpoena. Further, the views I express in these reasons do not foreclose a contrary conclusion in the opposed applications, when I will have the benefit of argument on both sides.
4 The foundation for the applications is s 17 of the Commercial Arbitration Act 1985 (WA) (the Act). That section empowers the court to issue a subpoena on the application of a party to an arbitration agreement. The first question is whether there is an arbitration agreement so as to enliven the court's powers under that section. For the reasons that follow, I am satisfied that there is an arbitration agreement.
The arbitration
5 The parties to these proceedings are parties to an agreement (the Agreement) dated 22 December 1998 under which the Woodside parties (the sellers) supply gas to Alinta Sales Pty Ltd (the buyer).
6 Clause 14 of the Agreement provides a process by which each of the sellers and the buyer can initiate a review of the price payable by the buyer for the gas sold under the Agreement, where the party believes that the prices payable under the Agreement no longer reflect the market value of the gas sold under the Agreement. Clause 14.6 of the Agreement is in the following terms:
(Page 5)
- 14.6 Price Review Other than Additional Gas
(a) In respect of gas sold under this Agreement that is not Additional Gas, if:
(i) by agreement between the parties or pursuant to a determination by an arbitrator there is a revision of prices or price related terms under the First Contract the Buyer or each Seller may during the 12 months prior to the Commencement Date; or
(ii) at any time during any Contract Year in the Main Period the Buyer or any Seller believes that as a result of changes of circumstances in the market in Western Australia in which the Buyer sells gas (the 'Market') the prices payable under this Agreement no longer reflect the Market value of the gas sold under this Agreement,
the Buyer (if the Buyer has formed that belief) or each Seller (if any Seller has formed that belief) may serve a notice on the other parties ('Price Review Notice') that a price review is requested.
(b) Upon the giving and receipt of a Price Review Notice the Buyer and each Seller shall endeavour to agree upon a revision of the prices and price related terms of this Agreement so that the prices payable under this Agreement reflect the Market value of the gas sold and to be sold under this Agreement having regard to the provisions of Clause 14.6(e).
(c) If the Buyer and each Seller have not agreed upon revisions to the prices and price related terms hereunder within six months of the giving of a Price Review Notice, either the Sellers or the Buyer may within 90 days after the expiry of that period of six months refer the matter to the arbitration of a single arbitrator to be appointed by agreement between the parties or, in default of agreement, by the Court on the application of any party to the dispute under section 10 of the Commercial Arbitration Act. The arbitration shall take place in Perth, Western Australia and shall be conducted in accordance with the provisions of the Commercial Arbitration Act, save that:
(i) only one arbitration shall be held pursuant to any Price Review Notice; and
(ii) to expedite the settlement of any dispute, it shall be competent for the arbitrator to enter upon the reference without any further or more formal submission than is contained in this Clause 14.5(c); and
- (iii) to the extent that the Arbitration Rules are not inconsistent with the express provisions of this Clause 14.6, the Arbitration Rules shall apply to any such arbitration.
- (d) The parties shall abide by the decision of the arbitrator and any prices or price related terms of this Agreement revised pursuant to the arbitration or by agreement between the parties shall apply:
(i) in the case where the Price Review Notice is given under Clause 14.6(a)(i): on and from the commencement of the First Contract Year of the Main Period;
(ii) in the case where the Price Review Notice is given under Clause 14.5(a)(ii) and is the first Price Review Notice given under this Agreement:
on and from the latest of:
(A) the commencement of the first Contract Year of the Main Period;
(B) the expiry of 3 years after the date upon which the price agreed or determined, pursuant to the most recent price review notice under the First Contract, took effect;
(C) the date upon which the Price Review Notice was given;
(iii) in the case where the Price Review Notice is the second or any subsequent Price Review Notice given under this Agreement:
on and from the later of:
(A) the date upon which that notice was given; and
(B) the expiry of 3 years after the date upon which the price agreed or determined, pursuant to the most recent Price Review Notice, took effect.
(i) the Market price of other energy forms or substitute products ('Other Energy') and the costs, including operating, maintenance, transportation and capital costs, of using Other Energy as compared with those of using gas;
- (ii) the Market price of alternative gas supplies and the terms and conditions upon which such alternative gas supplies are available to consumers in the Market;
(iii) the price at which the Buyer purchases supplies of gas, for resale or use in the Market, from other parties and the quantities, terms and conditions upon which such supplies of gas are obtained; and
(iv) the value of the financial and technical capabilities of the Buyer and the Sellers, as compared with those of other buyers or sellers in the Market and the extent to which those capabilities:
(A) have enabled the Buyer and each Seller to undertake performance of their respective obligations under this Agreement; and
(B) give assurance regarding performance of those obligations.
8 The parties were unable to reach agreement on revisions to the prices and price related terms within six months of that notice.
9 As a result, either party was entitled, within 90 days of the expiry of that six month period, to refer the matter to arbitration under the Act: cl 14.6(c).
10 By notice dated 29 April 2008 the sellers referred the matter (of revisions to the prices and price related terms of the Agreement) to arbitration (pursuant to cl 14.6(c)).
11 The Honourable MJ McHugh AC QC has been appointed as arbitrator. The arbitration is to proceed in accordance with the procedures stipulated in cl 24 of the Agreement, including the exchange of pleadings, discovery, exchange of evidence by witness statements, experts' reports and written and oral submissions.
12 I am satisfied that there is an arbitration agreement within the meaning of s 17 of the Act. The process is in the nature of a judicial inquiry; it does not involve the arbitrator making the parties contract or legislating for them: Apache Northwest Pty Ltd v Western Power
(Page 8)
- Corporation (1998) 19 WAR 350, 368; see also Queensland Power Trading Corp v Xstrata Queensland Ltd [2005] QCA 477.
The progressing of contemplated third party subpoena applications
13 The sellers and the buyer agreed, in the context of the arbitration, that a substantial number of third parties hold or are likely to hold documents which are or may be relevant to the factors to which, under cl 14.6(e), the arbitrator is to have regard to when determining new prices for the gas sold under the Agreement. The sellers and buyer conferred and agreed a list of proposed subpoena recipients who they believed were likely to be in possession of relevant documents. Each proposed recipient was allocated either to the sellers or to the buyer so that one only of the parties would contact the proposed recipient and, if necessary, apply for leave to issue a subpoena to that recipient.
14 The parties also conferred in relation to an agreed form of advance notice by way of letter which was sent to all proposed subpoena recipients. The standard letter explained the existence and broad subject matter of the arbitration. It identified the factors listed in cl 14.6(e) as matters relevant to the arbitration. The letter enclosed a form of subpoena intended to be served on the recipient party if necessary, subject to first obtaining leave, together with proposed confidentiality orders in relation to the documents to be produced. The letter referred to the confidentiality regime, saying that it was broadly consistent with regimes sanctioned in previous similar arbitrations.
15 A number of proposed subpoena recipients raised matters of concern to them by letters to the solicitors for the sellers. Following conferral between the solicitors for the sellers and solicitors for the buyer, the sellers' solicitors sent a further letter dated 21 November 2008 to the proposed recipients. The letter enclosed the relevant clauses of the Agreement. An amended version of the subpoena for each proposed recipient, with some narrowing of the categories of documents sought, was attached.
The issues in the arbitration
16 Clause 14.6(e)(i) provides that the arbitrator must have regard to the market price of Other Energy (defined as 'other energy forms or substitute products') and Costs, including operating, maintenance, transportation and capital costs, of using Other Energy as compared with the costs of using gas. One or both of the parties contend, in the arbitration, that the relevant forms of Other Energy include:
(Page 9)
- (a) coal (either solid or gas);
(b) liquefied petroleum gas (LPG);
(c) liquefied natural gas (LNG); or
(d) fuel oils, diesel and electricity,
from any source, including renewable sources (such as solar or wind) for industrial or commercial use (but excluding transport in the case of fuel oil and diesel) in Western Australia.
17 Relevant parts of the parties contentions are accurately summarised in pars 36 and 37 of the Sellers' outline of submissions as follows:
Market price - parties' contentions
36 The Applicants [Sellers] contend in the arbitration that:
(a) the Market, being the market in which the Respondent sells gas, is a market in which Gas and Other Energy is sold to end users; [Sellers' Statement of Contentions (SSC) par 15; Buyer's Statement of Contentions (BSC) par 59]
(b) the sellers of gas in the Market include the Applicants, other producers and aggregator resellers; [SSC par 16; BSC par 60]
(c) the buyers of gas in the Market include small use customers, using less than 1 TJ per annum, to which a tariff cap applies under the Energy Co-Ordination (Gas Tariffs) Regulations 2000, commercial users, industrial users and electricity generators; [SSC par 17; BSC par 61]
(d) the majority of gas in the Market is purchased for use by industrial users and electricity generators; [SSC par 18; BSC par 62]
(e) in determining the market value of gas in the Market it is necessary to have regard to the terms and conditions of supply by, the reserves and production capacity of, and the technical, financial and other capabilities of, the producers who supply gas that is sold in the Market; [SSC par 19; BSC par 63]
(f) the market value of gas in the Market is, in part, a result of the available supply of gas; [SSC par 20]
(g) the supply of gas to the Market is affected by factors that operate outside the Market, including the demand for, and price of, gas in other markets in which Western Australian
- suppliers of gas offer and supply gas; [SSC par 21; BSC par 65]
- (h) in order to determine the value of gas in the Market, it is necessary to have regard to factors affecting the demand for and the supply of gas both in the Market and in those other markets; [SSC par 22; BSC par 66]
(i) demand for gas in the Market exceeds supply, and is expected to do so during the price review period; [SSC par 61(b); BSC par 96]
(j) the price of new supplies of gas must exceed the long run marginal cost of supply of that gas, so that, in circumstances where demand for gas exceeds supply, the cost of new supplies of gas to the Market is of fundamental significance in ascertaining the price of alternative supplies and the value of the gas in that Market; [SSC par 61(c); BSC par 96]
(k) alternative gas is not available in the Market on terms and conditions equivalent to the terms and conditions of the Agreement; [SSC par 62; BSC par 96]
- 37 The Respondent [Buyer] contends in the arbitration that:
(a) upon a proper construction of the Agreement, the Market value of gas to be determined by the arbitrator is the value of the gas to the Respondent as a supplier of gas to Reseller Customers, which are defined as consumers of energy in the south west of Western Australia who are not willing to purchase gas directly from gas producers by reason of certain costs, risks and convenience factors; [BSC pars 13, 20]
(b) the value to the Respondent, as a supplier of gas to the Reseller Customers, is influenced by the following market circumstances:
(1) the price at which Other Energy is available to Reseller Customers;
(2) the price and terms on which supplies of gas other than the gas the subject of the Agreement are generally available to Reseller Customers;
(3) the price and terms on which gas for resupply to Reseller Customers can be, and is being, purchased by the Respondent;
- (4) the effect of increasing energy costs on the ability of Reseller Customers to compete in downstream markets;
(5) the price and terms on which gas has been agreed to be sold to Reseller Customers for a period of time into the future;
(6) the extent to which there is any regulation that controls the prices that can be charged to sell gas to Reseller Customers and, therefore, the ability of the Respondent to recover the cost of purchasing gas for resale to those customers;
(7) the risk that circumstances will change in the future so that the Respondent will be unable to sell the gas to Reseller Customers at a profit;
(8) the cost of resupplying gas to a portfolio of Reseller Customers; [BSC par 21]
(9) the prospect of Reseller Customers substituting Other Energy for gas in a number of postulated ways; [BSC par 24]
(10) the possibility of Reseller Customers relocating their business operations outside the Market; [BSC par 25]
18 I accept that the issues in the arbitration include those set out at par 40 of the Sellers' submissions.
19 I also accept the summary of issues set out in pars 15 - 20 of the Buyer's submissions as follows:
15. A basic issue in the Arbitration is the scope of the 'Market'. The Sellers contend, inter alia that it is the market in which gas and 'Other Energy' (as defined) is sold to end users, and that the sellers in that market include producers of gas [SSC pars 15-16]. The Buyer contends that the 'Market' is the market in which the Buyer sells gas to 'Reseller Customers' (defined by the Buyer as energy consumers in the South West of WA who for various reasons, are not willing to deal directly with producers) in competition with other energy suppliers selling energy to such Reseller Customers, and that the Sellers are not competitors who supply gas to that market [BSC pars 13, 16(c), 17].
16. One aspect of the above issue concerns the identity of consumers of energy in the South West who are unwilling to deal directly with gas producers as their sellers. …
(Page 12)
- 17. A related issue is the nature of the value of the gas to be valued for the purposes of price review, including whether it is the value of such gas to the Buyer [SSC pars 9(b) and 11; BSC pars 11(b) and 16(d)], …
18. In relation to the value of the gas to the Buyer, that is alleged to be influenced by circumstances affecting, or in relation to, the Reseller Customers, including:
(a) the price of Other Energy available to such customers;
(b) the price and terms (including periods of time) on which other supplies of gas are generally available to such customers;
(c) the effect, on such customers, of increasing energy costs, in respect of their ability to compete in their own down-stream markets.
[BSC pars 21(a)-(e), 24, 25, 28 and 29].
19. On whatever view of the market the Arbitrator concludes to be correct, the Arbitrator must, under cl 14.6(e) of the GSA, have regard to specified factors, including:
(a) the market price of other forms of energy that may be substituted for gas, and the other costs of such other energy forms, including operating, maintenance, transportation, and capital costs;
(b) prices and terms on which alternative gas supplies are available to customers in the Market.
[SSC par 10; BSC pars 12, 24 and 25. See also GSA cl 14.6(e)(i) and (ii)].
20. Another basic issue is, if the Sellers' view of the market were correct, whether the price of gas to be determined should be based on a weighted average of the prices paid by customers for the total quantity of gas sold to all customers and, if so, what are such prices [BSC pars 106(d) and (e)].
Legal principles
20 A court will only make an order for leave to issue a subpoena of documents returnable before trial if it is satisfied that the subpoena is issued for a legitimate forensic purpose: Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18], [68]; Darbyshire v Gilbert (2006) 31 WAR 558 [14].
(Page 13)
21 There is a legitimate forensic purpose for the issue of a subpoena of documents in respect of a document or class of documents that is apparently relevant: Apache Northwest Pty Ltd.
22 Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: Apache Northwest Pty Ltd (374); Stanley v Layne Christensen Co [2004] WASCA 50 [9]; Commonwealth of Australia v Albany Port Authority [18].
23 In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account. The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial: Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
24 Ultimately, the relevance of the documents produced is for the arbitrator. It is not appropriate for the court to embark on a detailed preliminary inquiry involving evidence from the party seeking to issue the subpoenas, and the company (or companies) against whom the subpoenas are sought to be issued: Apache Northwest Pty Ltd (379).
25 One object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage in proceedings. Accordingly, a narrow view should not be taken as to the legitimate purposes of a subpoena: Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
26 There is no requirement that to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a subpoena. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18].
27 In Australian Gas Light Co v Australian Competition & Consumer Commission [2003] ATPR 41-956 [8] French J said as follows:
(Page 14)
- It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
- This passage was cited with approval in Darbyshire [13] and Commonwealth of Australia v Albany Port Authority [18].
28 Apparent relevance is to be assessed by reference to the issues in the arbitration, taking into account the competing contentions of the parties: Queensland Power Trading Corp v Xstrata Queensland Ltd.
29 Generally, at least in considering questions of apparent relevance, the court should not attempt to resolve questions of construction that arise between the parties to the arbitration: AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366 [15], [25] - [26].
30 A subpoena of documents must be in a proper form. The class or classes of documents sought to be produced must be sufficiently clearly identified. The classes should not be specified in terms that direct attention to the relevance of the documents to issues in the proceedings to which the recipient is not a party: Darbyshire [15].
31 The process of determining whether inspection should be permitted is separate from the decision whether to grant leave to issue the subpoena. See, for example, Stanley v Layne Christensen Co [11] - [13].
The subpoenas sought
32 The applicants identified 20 classes of proposed subpoena recipients, which might be broadly summarised as:
(1) gas project owners or operators;
(2) gas buyers;
(3) buyers and suppliers of Other Energy including fuel, diesel, electricity, LNG, LPG, coal;
(4) electricity generators;
(Page 15)
- (5) gas pipeline owners or operators;
(6) entities possessing 'switching information';
(7) gas storage facility owners or operators;
(8) gas resellers; and
(9) electricity resellers.
33 The categories of documents sought from each class of proposed recipient are set out in attachments A-T of the Sellers' Originating Motion. Annexure 1 to these reasons contains attachments A-T, marked up with the amendments and deletions which arose in the course of this hearing.
34 In respect of each proposed recipient, a subpoena in terms of one or more of the classes in attachments A-T was sought. In each case, the applicants adduced evidence from which they invited the inference that the proposed recipient was a member of the relevant class or classes.
Disposition of the application
35 In preparing for the hearing of these applications, I have considered the terms of each proposed class of recipient (attachments A-T) and, for each class, the terms of each of the categories of documents set out in the proposed schedule for that class of recipient. I have, of course, also considered the affidavit material and the written submissions made in support of the relevance of each category.
36 In the course of the hearing of these applications I invited further submissions from counsel in respect of particular paragraphs (or parts of paragraphs) in various of the attachments A-T. In some cases, after hearing further submissions I was satisfied that it was appropriate to grant leave in terms of the relevant paragraph. In other cases, I indicated that I was not so satisfied. In further cases, I was satisfied that it was appropriate to grant leave in respect of an amended form of the paragraph. In each case I gave brief oral reasons for my conclusion. I do not propose to restate those reasons. The deletions and amendments arising from the hearing are reflected in the marked up changes in Annexure 1 to these reasons.
37 Having regard to the legal principles I have stated and to the issues in the arbitration, I am satisfied that, for each class of recipient, the categories of documents set out in the schedules and remaining after my exchange with counsel are apparently relevant to the arbitration.
(Page 16)
38 In relation to each proposed subpoena recipient that has not filed a notice of objection I am satisfied, in each case, that the affidavit material is sufficient to support an inference that the recipient is or may well be a member of each of the classes of recipient within attachments A-T sought to be used in relation to that recipient.
39 Where there is evidence that an individual recipient has, in correspondence or in discussions, raised an objection to a proposed subpoena, but has not filed a notice of objection, I have taken into account the objection to the extent that it is articulated in the evidence. To avoid any doubt, my decision to grant leave to issue the subpoenas does not involve any firm and final rejection of such objections. A subpoena recipient can apply to set aside the subpoena and, or alternatively, object to inspection of the documents produced.
40 Further, taking into account the various discretionary considerations identified in the legal principles I have referred to, I am satisfied that it is appropriate to grant leave to issue the proposed subpoenas for early return. Without attempting to be exhaustive, the following matters seem to me to be relevant in that regard:
(a) the terms of the proposed subpoenas are sufficiently certain so as to be acceptable;
(b) the applicants gave some warning of the proposed subpoena in October 2008 and, in some cases, have accommodated responses from the proposed recipients so as to narrow the documents that are sought;
(c) the subpoenas permit 'High Level Documents', namely a document summarising the contents of primary documents, without the need also to produce the primary documents;
(d) certified copies of documents can be produced, rather than originals;
(e) repetitive information is not required;
(f) a confidentiality regime is built into the process;
(g) a recipient can apply to set aside the subpoena, or can object to inspection generally, or can object in respect of inspection by one or more particular individuals.
41 For these reasons, I would grant leave to issue the subpoenas proposed, in the terms proposed by the applicants, subject to the deletions and amendments arising from my exchanges with counsel.
(Page 17)
(Page 18)
(Page 19)
(Page 20)
(Page 21)
(Page 22)
(Page 23)
(Page 24)
(Page 25)
(Page 26)
(Page 27)
(Page 28)
(Page 29)
(Page 30)
(Page 31)
(Page 32)
(Page 33)
(Page 34)
(Page 35)
(Page 36)
(Page 37)
(Page 38)
(Page 39)
(Page 40)
(Page 41)
(Page 42)
(Page 43)
(Page 44)
(Page 45)
(Page 46)
(Page 47)
(Page 48)
(Page 49)
(Page 50)
(Page 51)
(Page 52)
(Page 53)
(Page 54)
13
5
2