Qld Power Trading Corp v Xstrata Qld Ltd - [2005] QCA 477

SUPREME COURT OF QUEENSLAND

CITATION:

Qld Power Trading Corp v Xstrata Qld Ltd & Ors [2005] QCA 477

PARTIES:

QUEENSLAND POWER TRADING CORPORATION
(appellant)
v
XSTRATA QUEENSLAND LIMITED ACN 009 814 019
(applicant/respondent)
SANTOS LIMITED ACN 007 550 923
(respondent)
DELHI PETROLEUM PTY LTD ACN 007 854 686
(respondent)
SANTOS PETROLEUM PTY LTD ACN 000 146 369
(respondent)
ORIGIN ENERGY RESOURCES LIMITED ACN 007 845 338
(respondent)
VAMGAS PTY LTD ACN 006 245 110
(respondent)
SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ACN 010 850 487
(respondent)
ORIGIN ENERGY CSG LIMITED ACN 001 646 331
(respondent)

FILE NO/S:

Appeal No 9875 of 2005
SC No 7604 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2005

JUDGES:

de Jersey CJ, Williams JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.Appeal allowed

2.Order that paragraphs [3] and [19] of the order of the
Supreme Court of 7 November 2005 be set aside
insofar as they relate to the subpoena directed to the
appellant and in lieu thereof it be ordered that:

(a)the order of the Supreme Court made on 9
September 2005 be set aside insofar as it
relates to the subpoena directed to the
appellant;

(b)the subpoena directed to the appellant be set
aside;

(c)the respondent pay the appellant's costs of and
incidental to the application filed by the
appellant on 4 October 2005.

3.The respondent pay the appellant's costs of and
incidental to the appeal

CATCHWORDS:

ARBITRATION – THE SUBMISSION AND REFERENCE – WHAT MATTER MAY BE REFERRED – whether the referral of the dispute between the parties to the contract was an ‘arbitration’ within the meaning of s 4 of the Commercial Arbitration Act so as to give the court power to issue subpoenas under s 47

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – PROCEDURE AND EVIDENCE – SUBPOENAS – whether the subpoenaed documents were apparently relevant to the subject matter of the arbitration –whether the court ought to exercise its discretion to set aside the subpoenas when considering the commercially sensitive and confidential nature against the relevance of the documents required to be produced under the subpoenas

Commercial Arbitration Act 1990 (Qld), s 17

Apache Northwest Pty Ltd v Western Power Corporation
(1998) 19 WAR 350, considered
National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372, discussed
Norths Ltd v McCaughan Dyson Capel Cure Ltd (1988) 12 ACLR 739, cited
ReCarus-Wilson and Greene (1886) 18 QBD 7, discussed

Re FenwickvPort Jackson Co-operative Steamship Co (1898) 14 WN(NSW) 85, cited
Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38, considered

COUNSEL:

H B Fraser QC, with A M Pomerenke, for the appellant
G A Thompson SC, with S R R Cooper, for the respondent

SOLICITORS:

Clayton Utz for the appellant

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: [2005] QCA 477
Decision Date: 16 December 2005

CaseChat Overview and Summary

In this case, the Queensland Court of Appeal was called upon to determine the validity of a referral to arbitration between Qld Power Trading Corp and Xstrata Qld Ltd. The dispute involved the interpretation of a contract between the parties and the issuance of subpoenas as part of the arbitration process. The primary legal issue before the Court was whether the referral of the dispute to arbitration was within the scope of the Commercial Arbitration Act, specifically concerning the court's power to issue subpoenas under section 47. Furthermore, the Court had to decide whether the subpoenaed documents were relevant to the arbitration and whether the commercially sensitive and confidential nature of the documents outweighed their relevance.

The Court found that the referral to arbitration was indeed an arbitration under the Commercial Arbitration Act, which granted the court the authority to issue subpoenas. However, the Court was required to balance the relevance of the subpoenaed documents against their commercially sensitive and confidential nature. In setting aside the subpoenas, the Court held that the respondent, Xstrata Qld Ltd, had not sufficiently demonstrated the relevance of the documents to the arbitration. Given the confidential nature of the documents and the absence of a compelling need for their production, the Court exercised its discretion to set aside the subpoenas, thereby protecting the respondent's commercial interests.

The Court of Appeal allowed the appeal and set aside the orders of the Supreme Court that had previously issued the subpoenas. The Court further ordered that the subpoena directed to the appellant be set aside and that the respondent pay the appellant's costs associated with the application and the appeal. This decision underscores the importance of balancing the relevance and confidentiality of documents in arbitration proceedings and the discretionary power of the Court to set aside subpoenas where necessary.

Orders

Orders of the court

1.Appeal allowed

2.Order that paragraphs [3] and [19] of the order of the

Supreme Court of 7 November 2005 be set aside

insofar as they relate to the subpoena directed to the

appellant and in lieu thereof it be ordered that:

(a)the order of the Supreme Court made on 9

September 2005 be set aside insofar as it

relates to the subpoena directed to the

appellant;

(b)the subpoena directed to the appellant be set

aside;

(c)the respondent pay the appellant's costs of and

incidental to the application filed by the

appellant on 4 October 2005.

3.The respondent pay the appellant's costs of and

incidental to the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Qld Power Trading Corp v Xstrata Qld Ltd & Ors [2005] QCA 477
PARTIES:	QUEENSLAND POWER TRADING CORPORATION (appellant) v XSTRATA QUEENSLAND LIMITED ACN 009 814 019 (applicant/respondent) SANTOS LIMITED ACN 007 550 923 (respondent) DELHI PETROLEUM PTY LTD ACN 007 854 686 (respondent) SANTOS PETROLEUM PTY LTD ACN 000 146 369 (respondent) ORIGIN ENERGY RESOURCES LIMITED ACN 007 845 338 (respondent) VAMGAS PTY LTD ACN 006 245 110 (respondent) SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ACN 010 850 487 (respondent) ORIGIN ENERGY CSG LIMITED ACN 001 646 331 (respondent)
FILE NO/S:	Appeal No 9875 of 2005 SC No 7604 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2005
JUDGES:	de Jersey CJ, Williams JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1.Appeal allowed 2.Order that paragraphs [3] and [19] of the order of the Supreme Court of 7 November 2005 be set aside insofar as they relate to the subpoena directed to the appellant and in lieu thereof it be ordered that: (a)the order of the Supreme Court made on 9 September 2005 be set aside insofar as it relates to the subpoena directed to the appellant; (b)the subpoena directed to the appellant be set aside; (c)the respondent pay the appellant's costs of and incidental to the application filed by the appellant on 4 October 2005. 3.The respondent pay the appellant's costs of and incidental to the appeal
CATCHWORDS:	ARBITRATION – THE SUBMISSION AND REFERENCE – WHAT MATTER MAY BE REFERRED – whether the referral of the dispute between the parties to the contract was an ‘arbitration’ within the meaning of s 4 of the Commercial Arbitration Act so as to give the court power to issue subpoenas under s 47 ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – PROCEDURE AND EVIDENCE – SUBPOENAS – whether the subpoenaed documents were apparently relevant to the subject matter of the arbitration –whether the court ought to exercise its discretion to set aside the subpoenas when considering the commercially sensitive and confidential nature against the relevance of the documents required to be produced under the subpoenas Commercial Arbitration Act 1990 (Qld), s 17 Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, considered National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372, discussed Norths Ltd v McCaughan Dyson Capel Cure Ltd (1988) 12 ACLR 739, cited ReCarus-Wilson and Greene (1886) 18 QBD 7, discussed Re FenwickvPort Jackson Co-operative Steamship Co (1898) 14 WN(NSW) 85, cited Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38, considered
COUNSEL:	H B Fraser QC, with A M Pomerenke, for the appellant G A Thompson SC, with S R R Cooper, for the respondent
SOLICITORS:	Clayton Utz for the appellant