Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia

[2002] FCA 1029

FEDERAL COURT OF AUSTRALIA

Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2002] FCA 1029

PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L. AND OCEANIC EXPLORATION COMPANY V COMMONWEALTH OF AUSTRALIA, JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA, PHILLIPS PETROLEUM (91-12) PTY LIMITED, PHILLIPS PETROLEUM COMPANY ZOC PTY LTD AND PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED

NO. N 1224 OF 2001

BEAUMONT J
8 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1224 OF 2001

BETWEEN:

PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L.
FIRST APPLICANT

OCEANIC EXPLORATION COMPANY
SECOND APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA
SECOND RESPONDENT

PHILLIPS PETROLEUM (91-12) PTY LIMITED
THIRD RESPONDENT

PHILLIPS PETROLEUM COMPANY ZOC PTY LTD
FOURTH RESPONDENT

PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED
FIFTH RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

8 AUGUST 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be stood over to a date to be fixed as soon as practicable after the judgment is given by the Full Court, such date, if not agreed between the parties, to be fixed by arrangement with my associate.

2.Costs reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1224 OF 2001

BETWEEN:

PETROTIMOR COMPANHIA de PETROLEOS S.A.R.L.
FIRST APPLICANT

OCEANIC EXPLORATION COMPANY
SECOND APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

JOINT AUTHORITY ESTABLISHED PURSUANT TO THE TREATY OF 11 DECEMBER 1989 BETWEEN AUSTRALIA AND INDONESIA
SECOND RESPONDENT

PHILLIPS PETROLEUM (91-12) PTY LIMITED
THIRD RESPONDENT

PHILLIPS PETROLEUM COMPANY ZOC PTY LTD
FOURTH RESPONDENT

PHILLIPS PETROLEUM TIMOR SEA PTY LIMITED
FIFTH RESPONDENT

JUDGE:	BEAUMONT J
DATE:	8 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. The motion before the Court is a motion seeking access, by the solicitors for the applicants in the principal proceedings, to certain documents.  The documents are documents produced by the Joint Authority, pursuant to an arrangement between the parties made earlier in the proceedings, whereby by reason of a fear that the Joint Authority may be dissolved upon East Timor obtaining its independence, the documents might, therefore, not be properly preserved.  The documents were lodged with the Court and are held in its custody, but upon the footing that the applicants would not have access to them.

2. In the principal proceedings, a separate question has been referred to a Full Court, raising, in essence, at the behest of the respondents, the question whether the whole of the principal proceedings should be permanently stayed or summarily dismissed.  The separate question was argued before the Full Court in May of this year and, in the ordinary experience of the Court, a judgment could be anticipated to be given within six months of the Full Court's reserving its decision.  The matter before the Full Court is, on any view, a substantial question, both in its legal complexity, and in its factual and historical dimensions.

3. Notwithstanding the previous consensual arrangement, that is to say, that access to the documents would not be available to the applicants or their legal representatives, the applicants have, by their notice of motion, applied for access through their legal representatives on a confidential basis.  I have already indicated to the parties that if the previous consensual arrangement could, itself, be varied by consent to permit the access now sought, I would accord with it. 

4. However, the access is strongly opposed and, so far as I can judge from the affidavit material that has already been filed in the motion, the resolution of the present question will not only be contentious, but will carry with it its own significant dimensions.  I have made it clear to counsel for the applicants, who has put everything that could be put on his clients’ behalf in the present context, that, as a matter of case management of this particular issue, viewed in the wider context of the case management of the principal proceedings as a whole (including in that wider context the reference to the Full Court of the separate question), that the present motion raises, in an acute form, a question of timing only.  It is obvious that the applicants are entitled to make and pursue the present application at an appropriate time.  It is equally obvious, in my opinion, that this time is as soon as reasonably practicable after the Full Court has given its decision.  If I were to endeavour to deal with the present motion before that time, I would not only be undermining all of the existing case management processes that are in place, but I would possibly run the risk of pre-empting the decision of the Full Court itself.

5. It seems to me, as a matter of both principle and common sense, that I must defer the hearing of the present motion accordingly.  I would add, for completeness that, in the course of argument, counsel for the applicants mentioned that there was some concern that certain of the witnesses proposed to be called by the applicants in the principal proceedings are of advanced years, and that this introduced a note of urgency into the matter.  As indicated, I would hear any application for the preservation of such evidence when it is made, and I would give any such application the urgency it deserves, reserving of course for appropriate consideration, the question of access to any documents in that connection.

6. For those reasons, whilst I do not propose to dismiss the application, and without hearing the respondents at this stage, I order that the notice of motion stand over to a date to be fixed as soon as practicable after the judgment is given by the Full Court, such date if not agreed between the parties to be fixed by arrangement with my associate.  I reserve the costs of today.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:            21 August 2002

Counsel for the Applicants:	Mr G Kennett
Solicitor for the Applicants:	Deakins
Counsel for the First Respondent:	Mr S Lloyd
Solicitors for First Respondent:	Australian Government Solicitor
Counsel for the Third, Fourth & Fifth Respondents:	Mr S Gageler
Solicitor for the Joint Authority:	Ward Keller Lawyers
Solicitors for the Third, Fourth & Fifth Respondents:	Freehills
Date of Hearing:	8 August 2002
Date of Judgment:	8 August 2002