Alstom Power Limited v Eraring Energy - [2009] FCA 681

FEDERAL COURT OF AUSTRALIA
Alstom Power Limited v Eraring Energy [2009] FCA 681
COSTS – application for pre-action discovery – respondent objected on basis that documents sought already discovered in separate arbitration proceedings and that any claims should be pursued in arbitration – application successful – costs reserved – discovery made – no proceedings subsequently pursued in the Federal Court – claims unsuccessfully pursued in arbitration – on balance, no order as to costs
Trade Practices Act 1974 (Cth)
Federal Court of Australia Act 1976 (Cth) s 50
Federal Court Rules
Alstom Power Limited v Eraring Energy [2004] FCA 706
Home Office v Harman [1981] QB 534 cited
C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 cited
Cappuccio v Australia & New Zealand Banking Group Ltd [1999] FCA 1188 cited
Esso Australian Resources v Plowman (1995) 183 CLR 10 cited
ALSTOM POWER LIMITED (ACN 000 038 237) v ERARING ENERGY (ABN 31 357 688 069) and PACIFIC POWER (SUBSIDIARY NO 1) PTY LIMITED (ACN 003 424 691)
SAD 836 of 2003
MANSFIELD J
23 JUNE 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 836 of 2003

BETWEEN:
ALSTOM POWER LIMITED (ACN 000 038 237)
Applicant

AND:
ERARING ENERGY (ABN 31 357 688 069)
First Respondent

PACIFIC POWER (SUBSIDIARY NO 1) PTY LIMITED
(ACN 003 424 691)
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

23 JUNE 2009

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.Each party bear its own costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 836 of 2003

BETWEEN:
ALSTOM POWER LIMITED (ACN 000 038 237)
Applicant

AND:
ERARING ENERGY (ABN 31 357 688 069)
First Respondent

PACIFIC POWER (SUBSIDIARY NO 1) PTY LIMITED
(ACN 003 424 691)
Second Respondent

JUDGE:

MANSFIELD J

DATE:

23 JUNE 2009

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
INTRODUCTION

On 4 June 2004, Selway J delivered judgment on an application for pre-action discovery: Alstom Power Limited v Eraring Energy [2004] FCA 706 (the primary judgment). The first respondent was ordered to discover certain documents. Selway J further ordered:
2.The applicant to pay the costs of the first respondent incurred in making such discovery and in providing any inspection of the discovered documents.
3.Otherwise the question of the costs of this application be reserved for future application by the parties.
Since the discovery made pursuant to that order, no proceedings were issued in this Court. The parties’ dispute was also the subject of an arbitration, which concluded in December 2008. The only issue remaining before the Court is the costs reserved by Order 3 made by Selway J on 4 June 2004.
BACKGROUND
The applicant carried on business as a supplier of goods and services to the power industry, including the construction and refurbishment of power stations. The second respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Alstom Power Limited v Eraring Energy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FCA 681
Decision Date: 23 June 2009

CaseChat Overview and Summary

The case of Alstom Power Limited v Eraring Energy was heard in the Federal Court of Australia, where the primary issue was the costs reserved by Order 3 made by Selway J on 4 June 2004. The applicant, Alstom Power Limited, a supplier of goods and services to the power industry, had entered into a contract with the second respondent, the original owner of the Burrinjuck Power Station, to refurbish and upgrade the power station. After contractual disputes arose in 2002, the matter was referred to arbitration. The applicant later sought to review specific documents in the possession of the first respondent, the entity that had subsequently acquired ownership of the power station, to determine whether it could institute proceedings under the Trade Practices Act 1974 (Cth) against the first respondent for alleged misrepresentations. The applicant requested copies of these documents from the first respondent, offering to cover the reasonable costs of producing them.

The legal issues before the Court included whether the applicant's request for documents from the first respondent was a continuation of the original arbitration or a new proceeding, and if so, whether the applicant should bear the costs of the application. The Court had to determine the scope of the earlier orders concerning costs and whether the new request for documents constituted a new proceeding or was part of the original arbitration process. Additionally, the Court needed to consider whether the applicant’s request was made in good faith and if the first respondent’s refusal to provide the documents was justified.

The Court found that the applicant's request for documents constituted a new proceeding rather than a continuation of the original arbitration. It reasoned that the applicant's intention was to explore a potential claim under the Trade Practices Act, separate from the contractual disputes being arbitrated. Given that the applicant had already engaged new solicitors for this purpose, the Court determined that the request for documents marked the beginning of a new legal process. As a result, the Court held that the applicant should bear the costs of the application. The Court’s decision was grounded in the distinction between the ongoing arbitration and the separate potential claim under the Trade Practices Act.

The final orders of the Court were that each party bear its own costs of the application, reflecting the Court's determination that the applicant's request for documents initiated a new proceeding.

Orders

Orders of the court

1. Each party bear its own costs of the application.

Note:

Background

Background to the litigation

Since the discovery made pursuant to that order, no proceedings were issued in this Court. The parties’ dispute was also the subject of an arbitration, which concluded in December 2008. The only issue remaining before the Court is the costs reserved by Order 3 made by Selway J on 4 June 2004.BACKGROUND The applicant carried on business as a supplier of goods and services to the power industry, including the construction and refurbishment of power stations. The second respondent owned the Burrinjuck Power Station (the power station). The power station is now owned by the first respondent, which is a statutory corporation established in New South Wales. On 2 August 2000, the Treasurer of New South Wales made an order under the Energy Services Corporations Act 1995 (NSW) transferring all of the second respondent’s assets, rights and liabilities to the first respondent. For that reason, the first respondent became a party to and participated in the arbitration. The dispute relates to a contract entered into in 1999 between the second respondent and the applicant to refurbish and upgrade the power station. The contract required the applicant to perform certain refurbishment works described in the contract for approximately $17 million (the contract works), within a stipulated time. Contractual disputes arose between the applicant and the respondents in 2002, when the applicant submitted its claim for payment for the contract works and certain additional works completed. In December 2002, those disputes were referred to arbitration in accordance with the contract. Discovery occurred as part of the arbitration in relation to those contractual disputes. In early 2003, the applicant engaged its present solicitors (who were not the same as its legal representatives in the arbitration) for the purpose of determining whether the applicant had a claim against the first respondent pursuant to the Trade Practices Act 1974 (Cth) (the TP Act), arising out of alleged misrepresentations relating to payment for the additional works. The applicant was concerned that material already discovered in the arbitration could not be used for the purpose of considering whether or not to institute proceedings under the TP Act in this Court, in particular against the first respondent: Home Office v Harman [1981] QB 534. Consequently, by letter on 5 March 2003, the applicant requested copies of documents from the first respondent for the purpose of determining whether it may have a claim against the first respondent under the TP Act, and offered to pay the first applicant’s reasonable costs of producing such documents. The request was in the following terms:24.Alstom believes that it may have a right of action against [the first respondent, the second respondent and a third party, related to the second respondent] for misleading and deceptive conduct, or unconscionable conduct under the [TP Act] in respect of the matters set out in this letter.25.Alstom wishes to review [eight specified documents or categories of documents] in the possession, custody or control of [the first respondent] in order to enable it to decide whether to commence proceedings against [the first and second respondents and the third party], or any one or more of them, in relation to the matters referred to in paragraph 24:…26.Alstom is unable to obtain the [eight specified documents or categories of documents] referred to in paragraph 25 from any source other than [the first and second respondents, and the third party]. As stated in paragraph 10, Alstom does not know who, as between those entities, has possession of the documents relating to the project.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 836 of 2003

JUDGE:	MANSFIELD J
DATE OF ORDER:	23 JUNE 2009
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	23 JUNE 2009
PLACE:	ADELAIDE