FEDERAL COURT OF AUSTRALIA
Oswal v Apache Corporation (No 4) [2014] FCA 1291
Citation: Oswal v Apache Corporation (No 4) [2014] FCA 1291 Parties: PANKAJ OSWAL v APACHE CORPORATION File number: WAD 389 of 2013 Judge: GILMOUR J Date of judgment: 27 November 2014 Catchwords: PRACTICE AND PROCEDURE – application for further discovery of specific documents and categories of documents pursuant to r 20.21 of the Federal Court Rules2011 (Cth), alternatively r 20.15 - in the alternative, application for proper discovery pursuant to earlier orders of the Court – whether or not documents post-dating the last dates when it is alleged that several misrepresentations were made are discoverable – whether or not trial dates should be vacated Legislation: Trade Practices Act 1974 (Cth) s 51A
Federal Court Rules 2011 (Cth) rr 20.14, 20.15, 20.21Cases cited: Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171
Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211
Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd [2007] FCA 1205
Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136
McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230
North East Equity Pty Ltd v Proud Nominees Pty Ltd (2012) 285 ALR 217
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90
Tag Pacific Ltd v McSweeney (1992) 34 FCR 438
Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110
Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78Date of hearing: 20 November 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 62 Counsel for the Applicant: Mr DA McLure with Ms EL Beechey Solicitor for the Applicant: Kennedys Counsel for the Respondent: Mr SM Anderson SC with Mr J Garas Solicitor for the Respondent: Clyde & Co
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 389 of 2013
BETWEEN: PANKAJ OSWAL
ApplicantAND: APACHE CORPORATION
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
27 NOVEMBER 2014
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The trial listed to commence on 8 December 2014 be vacated.
2.The parties confer with a view to bringing in a minute of consent orders to reflect these reasons by 4.00 pm on 5 December 2014.
3.If agreement as to the orders cannot be reached by the time provided for in the previous paragraph the parties are each to file and serve a minute of proposed orders by 12 December 2014.
4.The parties each file and serve a minute of further proposed orders concerning further pre-trial directions by 12 December 2014.
5.The matter be listed for further directions on 18 December 2014 at 10.15 am.
6.Costs in relation to this interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 389 of 2013
BETWEEN: PANKAJ OSWAL
ApplicantAND: APACHE CORPORATION
Respondent
JUDGE:
GILMOUR J
DATE:
27 NOVEMBER…
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- AGLC
- Oswal v Apache Corporation (No 4) [2014] FCA 1291
- Case
- [2014] FCA 1291
- Decision Date
CaseChat Overview and Summary
The court considered the scope of discovery and the relevance of post-dated documents. It was established that the alleged misrepresentations were made on or about 21 February 2001 and between November 2000 and December 2001. However, Oswal sought documents from 2000 to 2007, including those recording gas reserves and evidencing commitments of gas. The court determined that documents post-dating December 2001 were not discoverable as they were not directly relevant to the issues in the pleadings. The court held that the representations, if made, were to be judged at the time they were allegedly made, and data that did not exist then could not inform the question of whether there were reasonable grounds for the representations.
The court also found that the pleading of lack of intention by the defendants was insufficient without specific details or evidence. It noted that the terms "Apache companies in Australia" and "the Apache Sellers" were not defined, making the concept of intention elusive. Furthermore, the court declined to require the defendants to provide documents concerning certain allegations, as there was no suggestion that gas supplies were not made as provided for under the GSPA. The court vacated the trial dates and directed the parties to confer and bring in a minute of consent orders reflecting these reasons by a specified date, with further directions to be listed subsequently.
Orders
Orders of the court
1. The trial listed to commence on 8 December 2014 be vacated.
2. The parties confer with a view to bringing in a minute of consent orders to reflect these reasons by 4.00 pm on 5 December 2014.
3. If agreement as to the orders cannot be reached by the time provided for in the previous paragraph the parties are each to file and serve a minute of proposed orders by 12 December 2014.
4. The parties each file and serve a minute of further proposed orders concerning further pre-trial directions by 12 December 2014.
5. The matter be listed for further directions on 18 December 2014 at 10.15 am.
6. Costs in relation to this interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The applicant submits it is entitled to discovery from the respondent and Apache Energy of: (a)documents recording the gas reserves or discussion of the gas reserves for the years 2000 to 2007;(b)documents evidencing other commitments of gas from the HJV gas fields for the years 2004 to 2007, which inform the assessment of how much of the reserves remained uncontracted. Consideration The representations alleged to have been made by the respondent are pleaded as having been made on or about 21 February 2001. Those against Apache Energy are alleged to have been made between November 2000 and December 2001. The applicant nonetheless seeks discovery of documents, which fall into various categories, for the period 2000 to 2007. The particular documents sought from the respondent and Apache Energy are annexed to the amended interlocutory application. I will deal with the various categories. I do not consider that documents referrable to the determination of proven or probable gas reserves of the HJV gas fields or any of them which post-date December 2001 are discoverable. They are not, in my opinion, directly relevant to the issues raised in the pleadings (r 20.14 of the Federal Court Rules). Whether the representations as to proven or probable reserves, if made, were misleading or deceptive falls to be judged at the time any such representations were made. This is so whether the applicant’s case rests on representations as to future matters or alternatively of existing fact. Data which did not exist when the representations were allegedly made cannot inform the question whether there were no reasonable grounds for making the alleged representations. The circumstances of this case are distinguishable from those found in North East Equity and Bill Acceptance. To the extent that the applicant pleads as against the respondent the intention of “the Apache Sellers” as at 21 February 2001 and in relation to Apache Energy the intentions of the “Apache companies in Australia”, the Apache Sellers, the HJV and Apache Energy as at November 2000, December 2000, January 2001, June 2001 and December 2001 I consider that, absent a plea that gas was not in fact supplied as agreed under the terms of the GSPA, or some other particulars provided to sustain this bald plea, the pleading of lack of intention is barren and nebulous. Apart from other considerations the expressions “Apache companies in Australia” and “the Apache Sellers” are not defined in the SOC. “HJV” is defined as a gas field in Western Australia (SOC [7.1]). The concept of the intention is in these circumstances elusive. Neither the respondent nor Apache Energy will be required to provide discovery of documents concerning the pleaded intentions. Documents such as notice to BFPL declaring or foreshadowing the declaration of a force majeure in 2006 should be discovered having regard to the applicant’s pleaded case but not otherwise. I am not, presently, prepared to put the respondent or Apache Energy to what would likely be a very onerous and expensive task of providing any documents concerning what is pleaded at SOC 7.3, 17.6.5, 17.6.6, 17.6.7, 20.7 and 20.8. This is so because there is no suggestion, and it has not been pleaded, that gas supplies were not made to BFPL as provided for under the GSPA. Indeed, as I mentioned, the Court was informed that apart from a period following the well-publicised Varanus Island gas plant explosion, there has been no shortfall in supplies to BFPL. The same point emerges from the pleading by the applicant that supplies to other customers, in some unspecified way, “jeopardized the security of supply of gas under the GSA” (SOC [20.7]) as well as the pleading concerning Apache Energy allegedly not endeavouring to procure that the arrangements with East Spar Joint Venture and others would ensure the security of supply of gas to BFPL under the GSPA.