Kuehne & Nagel Pty Ltd v SGL Australia Pty Ltd
[2024] VSC 55
•22 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST
S ECI 2023 05452
| KUEHNE & NAGEL PTY LTD (ACN 000 871 607) | Applicant |
| v | |
| SGL AUSTRALIA PTY LTD (ACN 114 047 450) | Respondent |
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JUDGE: | Croft J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 22 February 2024 |
DATE OF PUBLICATION OF REASONS | 22 February 2024 |
CASE MAY BE CITED AS: | Kuehne & Nagel Pty Ltd v SGL Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 55 |
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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 | - | Kennedys (Australasia) Partnership |
| For the Respondent | - |
HIS HONOUR:
Introduction
Kuehne & Nagel Pty Ltd (“Kuehne”) is the Applicant in this proceeding, and the respondent in arbitral proceedings brought against it by the Claimant. The seat of the arbitration is Melbourne and the arbitrator is Mr Terry Mehigan SC (“the Arbitrator”).
The dispute the subject of the arbitration relates to the provision of in‑country freight forwarding services by Kuehne in respect of a number of consignments of rapid antigen tests in early 2022.
The Respondent in this proceeding is the addressee of the proposed subpoena and was a commercial partner of the Claimant, with which the Claimant contracted for the provision of air charter and commercial services in relation to the transportation of rapid antigen tests and face shields from China to Australia.
By originating application for issue of subpoena filed 21 November 2023 (“the Originating Application”), Kuehne seeks an order for the issue of a subpoena under s 27A of the Commercial Arbitration Act 2011 (“CAA”) requiring the Respondent to produce the documents specified in the draft subpoena annexed in Form 2–9Q to the Originating Application, pursuant to r 9.14(3)(b) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (“the Arbitration Rules”).
In support of its application, Kuehne filed an affidavit of Ashleigh Sarah Weaver dated 15 November 2023 (“the supporting affidavit”). Exhibited to the supporting affidavit was an Order made by the Arbitrator on 10 November 2023 granting Kuehne permission for this application to be made pursuant to s 27A of the CAA (“the Order”).
The application is brought ex parte, although it is apparent from the Order that the Claimant in the arbitral proceedings provided its written consent to the arbitral tribunal to the application being made. Such consent was subject to conditions accepted by the Applicant prior to the application being made.
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 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 names of the arbitrators constituting the arbitral tribunal conducting the arbitration;
(iii)the place where the arbitration is being conducted;
(iv)the nature of the arbitration;
(v)the terms of the permission given by the arbitral tribunal for the application;
(vi)the conduct money (if appropriate) to be paid to the addressee; and
(vii)the witness expenses payable to the addressee.
(3)For the purposes of paragraph (2)(a), the draft subpoena shall be—
(a)for a subpoena to attend for examination before an arbitral tribunal—in Form 2–9P;
(b)for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena—in Form 2–9Q; or
(c)for a subpoena to attend for examination and produce documents— in Form 2–9R.
(4)The Court may—
(a)fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and
(b)direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena.
(5)An amount fixed under paragraph (4) may be in addition to any conduct money or witness expenses referred to in paragraph (2)(b).
(6)A subpoena shall be—
(a)for a subpoena to attend for examination before an arbitral tribunal—in Form 2–9P;
(b)for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena—in Form 2–9Q; or
(c)for a subpoena to attend for examination and produce documents—in Form 2–9R.
(7)A person served with a subpoena shall comply with the subpoena in accordance with its terms.
(8)Order 42 of Chapter I applies so far as is practicable to a subpoena referred to in this Rule.
Evidence
In compliance with sub‑r 9.14(2)(b) of the Arbitration Rules, the Originating Application was accompanied by the supporting affidavit.
The supporting affidavit exhibited the Order of the Arbitrator dated 17 November 2023 granting permission to make this application pursuant to s 27A(2) of the CAA, and stating the Arbitrator’s view that it is appropriate for permission to be granted for the issue of a subpoena for production of the documents sought.
The documents sought to be produced to the arbitral tribunal related to correspondence between Kuehne and the respondent to this proceeding relating to the packing of, or damage to, any covid‑19 rapid antigen tests transported under the air waybills listed in a table annexed to the Order.
Principles
The proper approach of the Court to such applications was explained by Croft J in Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd[1] as follows:
[1](2017) 52 VR 267; and see Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241; Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 (Beech J); ASADA v 34 Players and One Support Person [2014] VSC 635.
In Delphi Petroleum Inc v Derin Shipping & Trading Ltd Denault J of the Federal Court of Canada (Trial Division), in the context of court assistance in the compulsory taking of evidence from a former employee of a party, said:
An inquiry into the reasons for the request is likely not necessary because the request issues from the arbitral tribunal itself or has the approval of the arbitral tribunal, and the role of the court is merely to exercise for the arbitral tribunal the compulsion power which the arbitral tribunal may not have.[2]
[2]Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241 at [10].
…
However, in my view it is not appropriate to extend its logic to the present circumstances to preclude an enquiry by this Court into the reasonableness of the issue of the subpoena. While a degree of deference to the position taken by the arbitral tribunal is vital, it is clear from the case law that the Court does not act as a mere ‘rubber stamp’ in issuing subpoenas in support of arbitral proceedings. As I said in ASADA v 34 Players and One Support Person:
Having regard to the international provenance of the Act, particularly the provisions of the Model Law, it is, in my view, clearly inappropriate for the court, in an application under s 27A of [the CAA] by a party to obtain subpoenas, to embark upon a process which would, in effect, ‘second guess’ the arbitral tribunal which has already given permission for the application to obtain a subpoena under these provisions.[3] It is quite clear from the provenance of this legislation, internationally and domestically, that the emphasis sought to be achieved by the legislature is court assistance and support for arbitral processes, and not ‘heavy handed’ intervention or, in effect, duplication of the functions of the arbitral tribunal. Long gone are the evils of the case stated procedure under the Victorian Arbitration Act and its equivalents in other jurisdictions. Since the Commercial Arbitration Act in Victoria, the trend in legislative developments and court decisions has been to constrain merits appeals and the consequent cost and delay that flows from duplication of the proceedings in this process. This is not to say, however, that a provision such as s 27A of [the CAA] is to be treated lightly by the courts. The sanctions for a breach of a court issued subpoena are potentially very serious indeed. Consequently, the basis upon which these powers are sought to be invoked must be established to the satisfaction of the court. Nevertheless, this process should, naturally, occur as expeditiously and cost effectively as possible; but it must be balanced against the seriousness associated with subpoenas and their possible breach.[4]
The policy underlying the Court’s abstention from enquiry into the merits of arbitral decisions is that the parties have by consent subjected themselves to the jurisdiction of the arbitrator by their conclusion of an arbitration agreement. The same policy considerations do not, however, justify an exercise of the Court’s coercive powers against non‑parties without enquiry into the reasonableness of the use of such powers. Non‑parties are strangers to the arbitration agreement, and they should be no more exposed to answering subpoenas in arbitration than they are in litigation, especially since arbitral examination is not under the immediate supervision of the Court.
In any event, it is inherent in the scheme which the CAA establishes, especially in s 27 which implicitly confirms an independent discretion in the Court for the purpose of assisting the arbitration process, that there must be some enquiry by the Court into the reasonableness of the issue of the subpoena. Thus it is not sufficient that there is ‘merely’ an arbitral tribunal in support of the subpoena application, requesting or approving the issue of such a subpoena. Thus, in addition to the express requirements under s 27A of the CAA, there must be evidence of reasonable grounds for the issue of the subpoena against the addressee.[5]
[3]See Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 (Beech J).
[4] [2014] VSC 635 at [63].
[5] (2017) 52 VR 267 at 268–270, [5]–[7].
In summary, in determining an application under s 27A of the CAA, the Court must be satisfied of compliance with the relevant section and rule, and that it is reasonable for the subpoena to be issued. It does not merely ‘rubber stamp’ the application. However, the Court will attribute a degree of deference to the fact that permission has been given by the arbitral tribunal and will not usually ‘second guess’ the position that:
(a) the documents the subject of a proposed subpoena are relevant to the issues in the proceeding; and
(b) the subpoena is being issued for a legitimate forensic purpose.
Procedure
In the usual case, there is no practical or legal requirement for an applicant to serve the other parties to the arbitration or the addressee with the application, or to otherwise give them an opportunity to dispute the applicant’s right to issue the subpoena.
Practically, in the usual case, for the Court to entertain such a dispute between the parties would only serve to add to the cost of and delay in the conduct of the arbitration. The facilitation of such a collateral dispute by the Court would not be consistent with ‘the emphasis sought to be achieved by the legislature [being] court assistance and support for arbitral processes’.[6] Of course, under r 42.04 of the Supreme Court (General Civil Procedure) Rules 2015 (“the Rules”), a party or any person having a sufficient interest may apply to set aside the subpoena.
[6]Chief Executive Officer of Australian Sports Anti‑Doping Authority Australian Football League (ASADA) v 34 Players and One Support Person [2014] VSC 635, [63] (Croft J). See also Commercial Arbitration Act 2011 (Vic) ss 1AA, 1AC; International Arbitration Act 1974 (Cth) ss 2D, 39.
The Arbitration Rules provide that Order 42 of Chapter 1 of the Rules should apply ‘so far as is practicable’.[7] Order 42 of the Rules does not require, and it is not the practice for, notice to be given to other parties prior to the issue of a subpoena. In fact, there is less reason to put other parties or the addressee on notice in an application for leave to issue a subpoena in arbitration proceedings because the tribunal has already considered the matter and given permission. As noted in the previous paragraph, under the Rules, a party or any person having a sufficient interest may apply to set aside the subpoena, but are not usually given the opportunity to oppose the issue of the subpoena.
[7]Supreme Court (Miscellaneous Civil Proceedings) Rules2018 (Vic) r 9.14(8).
Accordingly, for the purpose of minimising cost and delay in the arbitral process, it will usually be appropriate for the Court to determine the application for leave to issue the subpoena ex parte on the papers. Of course, nothing I have said is intended to suggest there is a limitation on the discretion of the Court, in an appropriate case, to require notice to be given of the application.
Conclusion
After reading the affidavit in support and the Order of the Arbitrator, I am satisfied of compliance with the relevant section and rule, and that it is reasonable for the subpoenas to be issued.
Orders
I therefore order as follows:
1.The issue of a subpoena to produce documents under section 27A of the Commercial Arbitration Act 2011 to the Respondent, SGL Australia Pty Ltd, to produce the documents listed in the Schedule of Documents in the Applicant’s draft form Form 2–9Q subpoena filed on 21 November 2023.
2.At the time of service of the subpoena, the Respondent is to be:
a.served with an authenticated copy of these orders; and
b.provided or tendered conduct money, as defined in r 42.01 of the Rules, in the amount of $100.
3.The Applicant pay the reasonable witness expenses incurred by the Respondent in complying with the subpoena.
4.The costs of this application, the costs of and incidental to the subpoena, and the amounts payable under order 3, are costs reserved in the arbitration.
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