John Holland Pty Ltd v The Commonwealth - [2021] VSC 77

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST

S ECI 2021 00354

JOHN HOLLAND PTY LTD (ACN 004 282 268)	Applicant
v
THE COMMONWEALTH OF AUSTRALIA Represented by the Department of Defence	Respondent

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JUDGE:	RIORDAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	Ex parte on the papers
DATE OF JUDGMENT:	25 February 2021
CASE MAY BE CITED AS:	John Holland Pty Ltd v The Commonwealth
MEDIUM NEUTRAL CITATION:	[2021] VSC 77

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ARBITRATION – Leave to issue a subpoena – Principles – Whether notice of application must be given to other parties or the addressee of the subpoena – Court’s role in assisting and supporting arbitral processes – Leave granted on the papers ex parte – Section 27A of the Commercial Arbitration Act 2011 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Corrs Chambers Westgarth

HIS HONOUR:

By originating application for issue of subpoena filed 15 February 2021, the applicant (‘John Holland’) seeks an order for the issue of a subpoena under s 27A of the Commercial Arbitration Act 2011 (Vic) (‘CAA’) requiring The Trustee for the White Family Trust t/as Ken White Consulting Engineers (ABN 84 383 301 528) (‘the Addressee’) to produce documents.

John Holland is the respondent in arbitral proceedings brought by the Commonwealth of Australia, represented by the Department of Defence (‘the Commonwealth’). The seat of the arbitration is Melbourne and the arbitrator is Professor John Sharkey AM (‘the Arbitrator’).

The dispute the subject of the arbitration arises out of a contract under which John Holland was the major contractor engaged by the Commonwealth to design and construct various infrastructure facilities at the Royal Australian Air Force Base Amberley, located in Queensland, Australia.

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 to the Court under subsection (1) with the permission of the arbitral tribunal.
(3)A person must not be compelled under any subpoena issued in accordance with subsection (1) to answer any question or produce any document that the person could not be compelled to answer or produce in a proceeding before the Court.

Subpoenas relating to domestic commercial arbitration are regulated by r 9.14 of the Supreme Court (Miscellaneous Civil Proceedings) Rules2018 (Vic) (‘the Arbitration Rules’), which provide as follows:

(1)An application for the issue of a subpoena under section 27A of the Commercial Arbitration Act shall be in Form 2–9O.

(2)       The application shall be accompanied by—
(a)       a draft subpoena in accordance with paragraph (3); and
(b)       an affidavit stating—
(i)        the names of the parties to the arbitration;
(ii)the name of the arbitrator or the…

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: [2021] VSC 77
Decision Date: 25 February 2021

CaseChat Overview and Summary

John Holland Pty Ltd initiated proceedings against the Commonwealth, seeking leave to issue a subpoena as part of an ongoing arbitration. The dispute arose under the Commercial Arbitration Act 2011 (Vic), specifically concerning the principles governing the issuance of subpoenas in arbitration. The central issue was whether notice of the application for leave must be given to other parties or the addressee of the subpoena, and the court's role in facilitating and supporting arbitral processes. The court was asked to determine whether leave to issue the subpoena could be granted ex parte, without the need for prior notification to the other party or the addressee.

The court examined the provisions of section 27A of the Commercial Arbitration Act 2011 (Vic) and considered the established principles regarding the issuance of subpoenas in arbitration. It noted that while there is generally a requirement for notice to be given to other parties or the addressee, there are circumstances where an ex parte application may be appropriate. The court found that the party seeking the subpoena had provided sufficient justification for not giving prior notice, and that the interests of justice were best served by granting leave without delay. The court's role in supporting arbitral processes was also considered, emphasising the need for flexibility and efficiency in arbitration proceedings.

Upon reviewing the application and the arguments presented, the court concluded that the principles of arbitration and the specific provisions of section 27A of the Act permitted the granting of leave to issue the subpoena ex parte. The court was satisfied that the party's justification for not giving notice was valid and that the overall interests of the arbitration would be served by the immediate issuance of the subpoena. Consequently, the court granted the application, allowing the subpoena to be issued without prior notice. This decision reflects the court's commitment to facilitating efficient and fair arbitration processes.

Orders