Bonacci Infrastructure Pty Ltd v John Holland Pty Ltd - [2023] VSC 740

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
ARBITRATION LIST

S ECI 2023 05404

BONACCI INFRASTRUCTURE PTY LTD	Applicant
v
JOHN HOLLAND PTY LTD	Respondent

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 December 2023
DATE OF PUBLICATION OF REASONS	13 December 2023
CASE MAY BE CITED AS:	Bonacci Infrastructure Pty Ltd v John Holland Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 740

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ARBITRATION — Leave to issue a subpoena — Principles — Court must be satisfied of compliance with relevant section and rule and reasonableness of subpoena — Court will not ‘second guess’ arbitrator’s ruling where documents relevant to issues in proceeding and subpoena sought to be issued for legitimate forensic purpose — Leave granted on return of application— Section 27A of the Commercial Arbitration Act 2011 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	-	Sparke Helmore
For the Respondent	-	Corrs Chambers Westgarth

HIS HONOUR:

Introduction

Bonacci Infrastructure Pty Ltd (‘Bonacci’) is the sole Respondent in arbitral proceedings brought against it by John Holland Pty Ltd (‘John Holland’). The seat of the arbitration is Melbourne and the arbitrator is The Hon Thomas Frederick Bathurst AC KC (‘the Arbitrator’). The arbitration is listed for final hearing before the Arbitrator between 29 April 2024 and 17 May 2024.

The dispute the subject of the arbitration relates to a project at Royal Australian Air Force (‘RAAF’) Base Amberley in Queensland, occurring between 2007 and 2009. The project involved the design and construction of facilities to support the operation of the RAAF’s Boeing C‑17 Globemaster III aircraft, among other aircraft, at RAAF Base Amberley.

By originating application for issue of subpoena filed 17 November 2023 (‘the Originating Application’), Bonacci seeks an order for the issue of a subpoena under s 27A of the Commercial Arbitration Act 2011 (Vic) (‘CAA’) requiring the third parties listed in the orders made, as set out in the reasons which follow, to produce the documents specified in the subpoenas.

John Holland has been informed of the Originating Application and does not object to it, or to having the application dealt with on the papers, as is sought by Bonacci. John Holland has otherwise taken no part in this application.

Submissions

Bonacci filed an affidavit of Jonathan Robinson Mataraaratchi Tyne dated 17 November 2023 in support of the application (‘the supporting affidavit’).

The position of Bonacci is that the documents sought by issue of the subpoenas are relevant to the determination of the arbitral proceedings with respect to the dispute.

Legislative regime

Section 27A of the CAA provides as follows:

(1)The Court may, on the application of any party, and subject to and in accordance with rules of court, issue a subpoena requiring a person—
(a) to attend for examination before the arbitral tribunal; or
(b)to produce to the arbitral tribunal the documents specified in the subpoena; or

(c) to do both of those things.
(2)A party may only make an application…

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.

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Details

Case: [2023] VSC 740
Decision Date: 13 December 2023

CaseChat Overview and Summary

The case of Bonacci Infrastructure Pty Ltd v John Holland Pty Ltd dealt with an application for leave to issue a subpoena to a third party in the context of an arbitration proceeding. The matter was heard in the Supreme Court of Victoria, where the court was required to determine whether it should grant leave for the issuance of a subpoena under Section 27A of the Commercial Arbitration Act 2011 (Vic).

The primary legal issue before the court was whether the applicant had satisfied the requirements necessary to obtain leave to issue a subpoena to a third party during the course of an arbitration. The applicant had to demonstrate that the subpoena was relevant to the issues being arbitrated, and that it was reasonable and for a legitimate forensic purpose. Additionally, the court had to ensure that the applicant had complied with the relevant provisions of the Act and the rules governing the arbitration process.

In delivering the decision, the court considered the principles established in previous cases concerning the issuance of subpoenas in arbitration. It was noted that the court should not 'second guess' the arbitrator's ruling but should instead focus on whether the applicant had met the statutory requirements. The court found that the applicant had demonstrated that the documents sought by the subpoena were relevant to the arbitration and that the subpoena was sought for a legitimate forensic purpose. Furthermore, the court was satisfied that the applicant had complied with the relevant provisions of the Act and the rules of arbitration. Consequently, the court granted leave for the subpoena to be issued.

As a result of the court's decision, leave was granted for the subpoena to be issued, enabling the applicant to obtain the necessary documents from the third party in the course of the arbitration. This outcome ensures that the arbitration process can proceed with the relevant evidence being made available for consideration.

Orders