Arbitration—Agreement—Hearing in private—Implied terms Confidentiality of documents and information disclosed—Documents produced at direction of arbitrator.
Headnote
When one party produces documents or discloses information to an opposing party in an arbitration that is to be heard in private, the documents or information are not clothed with confidentiality merely because of the privacy of the hearing. Nor does the use of a document in such proceedings make the document confidential. Absolute confidentiality of documents produced and information disclosed in an arbitration is not a characteristic of arbitrations in Australia. Accordingly, a party who enters into an arbitration agreement is not taken merely on that account to have contracted to keep absolutely confidential all documents produced and information disclosed to that party by another party in the arbitration.
So held by Mason CJ, Brennan, Dawson and McHugh JJ, Toohey J dissenting.
Per Mason CJ, Dawson, Toohey and McHugh JJ. Documents produced by a party compulsorily pursuant to a direction by an arbitrator attract the same confidentiality that would attach to them if they were litigating their dispute, subject only to the legitimate interest of the public in obtaining information about the affairs of public authorities.
Per Mason CJ, Dawson and McHugh JJ. The private character of an arbitration hearing inheres in the subject matter of the agreement to submit disputes to arbitration and does not arise as a result of an implied term to that effect.
Per Brennan J. In an arbitration agreement under which one party is bound to produce documents or disclose information to the other for the purposes of the arbitration and in which no other provision for confidentiality is made, a term should be implied that the other party will keep the documents produced and the information disclosed confidential except (a) where disclosure of the otherwise confidential material is under compulsion of law; (b) where there is a duty, albeit not a legal duty, to the public to disclose; (c) where disclosure of the material is fairly required for the protection of the party's legitimate interests; and (d) where disclosure is made with the express or implied consent of the party producing the material.
CANBERRA, 1994, March 8, 9; April 7 #DATE 7:4:1995
APPEAL from the Supreme Court of Victoria.
Esso Australia Resources Ltd and BHP Petroleum (North West Shelf) Pty Ltd were parties…
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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AGLC
Esso Australia Resources Ltd v Plowman [1995] HCA 19
Case
[1995] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Victoria in a dispute between Esso Australia Resources Ltd and Plowman. The case concerned the validity of a notice issued by the Commissioner of Taxation under s 264 of the *Income Tax Assessment Act 1936* (Cth) requiring the taxpayer, Esso, to provide certain information and documents relating to its petroleum operations. Esso challenged the notice on several grounds, arguing it was invalid and that the Commissioner had acted improperly.
The central legal issues before the High Court were whether the notice issued by the Commissioner was validly made, and whether the Commissioner had acted in bad faith or for an improper purpose in issuing the notice. Specifically, the Court had to consider the scope of the Commissioner's power under s 264, the requirements for the exercise of that power, and the circumstances in which a notice issued under that section could be challenged on the grounds of bad faith or improper purpose.
The High Court, by majority, held that the notice was valid. The Court reasoned that s 264 conferred a broad power on the Commissioner to obtain information and documents for the purposes of the Act, and that the Commissioner was not required to demonstrate a specific suspicion of under-taxation or evasion before issuing a notice. The majority found that the evidence did not establish that the Commissioner had acted in bad faith or for an improper purpose. The Court affirmed that judicial review of administrative decisions, such as the issuance of a s 264 notice, is generally limited to ensuring that the decision-maker acts within their statutory powers and does not abuse their discretion.
The appeal was allowed, and the orders of the Supreme Court of Victoria were set aside.