Tap Energy (Thailand) Pty Ltd v Northern Gulf Petroleum Holdings Ltd
[2015] WASC 295
•13 AUGUST 2015
TAP ENERGY (THAILAND) PTY LTD -v- NORTHERN GULF PETROLEUM HOLDINGS LTD [2015] WASC 295
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 295 | |
| 13/08/2015 | |||
| Case No: | COR:94/2015 | 30 JULY 2015 | |
| Coram: | MASTER SANDERSON | 31/07/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | TAP ENERGY (THAILAND) PTY LTD NORTHERN GULF PETROLEUM HOLDINGS LTD |
Catchwords: | Practice and procedure Restriction of access to attachment to affidavit filed by plaintiff Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
NORTHERN GULF PETROLEUM HOLDINGS LTD
Defendant
Catchwords:
Practice and procedure - Restriction of access to attachment to affidavit filed by plaintiff - Turns on own facts
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : Mr J A Thomson SC with Mr S D Wilson
Defendant : Mr G M Slattery with Ms R T Heath
Solicitors:
Plaintiff : Corrs Chambers Westgarth
Defendant : Squire Patton Boggs
Case(s) referred to in judgment(s):
Nil
1 MASTER SANDERSON: By originating process filed 4 May 2015, the plaintiff applied to set aside a statutory demand issued by the defendant. Certain programming orders were made and various affidavits have been filed both in support of, and in opposition to, the application. The matter is now listed for a special appointment before Tottle J on 26 August 2015.
2 By chamber summons filed 8 July 2015, the plaintiff applied pursuant to O 58 r 9 to restrict access to one of the attachments to an affidavit it filed in support of the application. I heard the application on 30 July 2015 and on 31 July 2015 I made orders which restricted access to the attachment, those orders being in a slightly different form to the orders proposed by the plaintiff. I indicated at the time I would publish reasons for my decision. These are those reasons.
3 For the purposes of this application it is necessary to set out some limited background information. On 2 July 2015, the plaintiff filed an affidavit sworn by Denis Bouclin on 1 July 2015. This is referred to by both parties as the second Bouclin affidavit. On 2 July 2015, the plaintiff served on the defendant the second Bouclin affidavit without any of the attachments - that is, DB10 to DB16. These attachments reproduce or relate to a reservoir report described as the 'June Report' by both parties.
4 The plaintiff proposed a confidentiality regime in relation to access to the attachments by representatives of the defendant, which the defendant rejected. That led to this chamber summons. The orders proposed by the plaintiff had the effect of restricting access to the June Report to the legal representatives of the defendant and an independent Australian reservoir engineer retained by the defendant. I will set out details of the orders sought by the plaintiff later in these reasons. For present purposes, it is enough to say the plaintiff proposed restrictions upon disclosing the attachments in order to avoid the defendant and its wholly owned subsidiary from using present proceedings which the defendant has precipitated to obtain a copy of the June Report. The June Report is confidential and the defendant's subsidiary is not contractually entitled to the June Report under the relevant joint operating agreement due to alleged outstanding defaults.
5 The defendant maintained it was entitled to have unrestricted access to the June Report and related attachments. In its written submissions the defendant maintained it was entitled to unrestricted access on the following grounds. First, it was said the June Report is technical and the defendant needs its employees and officers with technical expertise to interpret and instruct the defendant's solicitors. Disclosure was required to further the interests of justice.
6 Secondly, it was submitted there was no particular confidentiality in relation to the June Report. It was pointed out there was a dispute between the plaintiff and the defendant's subsidiary which was in no way related to the issues between the plaintiff and the defendant. It was submitted there was no real prejudice to the plaintiff in the defendant being provided with a copy of the report.
7 Third, it was said there was no evidence of a risk of disclosure of the June Report or confidential information in that report. Insofar as there was any allegation of previous disclosures, that was denied. Further, it was said the plaintiff has already made disclosure to the market of the reserves in the June Report with the effect the information was no longer confidential.
8 Finally, it was said if the June Report was provided to the defendant, there was available the protection offered by a Harman undertaking and no further protection was required.
9 In the main proceedings the plaintiff applies to set aside the statutory demand, inter alia, on the grounds there is a genuine dispute. The debt alleged in the statutory demand is based on the operation of cl 4.6 of an agreement known as SPA. This agreement appears as attachment MJW3 to the affidavit of Melanie Williams sworn 4 May 2015. The statutory demand alleges that a report issued on March 2015 (the March Report) triggered a payment to be made by the plaintiff pursuant to cl 4.6 of the SPA. The plaintiff denies this and says that a different report issued in June triggered a payment (of a different amount) pursuant to cl 4.6 of the SPA. The June Report is one of the attachments and the other attachments are extracts of this report or relate to this report.
10 In my view, there were two reasons why the attachment did not have to be disclosed. The plaintiff alleges the defendant's subsidiary is in default under an agreement between that subsidiary and the plaintiff. Once a default is alleged, the plaintiff is entitled to restrict access of the defendant's subsidiary to the June Report. The subsidiary denies the default, but that is not to the point. Once the allegation is made the right to restrict access to the report arises. The defendant fully owns its subsidiary. Furthermore, there is a common director of the defendant and its subsidiary. That means, in reality, a disclosure of the report to the defendant is a disclosure to its subsidiary. To order such disclosure would subvert the contractual arrangement between the plaintiff and the defendant's subsidiary.
11 If it were necessary for this disclosure to occur to do justice between the parties, then full disclosure might well have been appropriate. But it is important to remember the purpose of the attachment in the context of these proceedings. This leads to the second ground upon which access should be restricted. The reason why the plaintiff refers to the attachment is to show there is a difference between the reserves set out in the March Report and those set out in the June Report. In the context of this application no final determination is to be made as to which report correctly reflects the reserve position. All that has to be established is that there is a difference between the two reports. Of course, the defendant's solicitors are entitled to see the report and to have it analysed by their engineer. But the interests of justice do not require the disclosure of the report to the defendant generally.
12 In its chamber summons, the plaintiff sought the following orders:
1 Subject to order 2, the defendant, its representatives or its advisors are prohibited from inspecting, accessing or copying the attachments DB10 to DB16 to the affidavit sworn by Denis Bouclin on 1 July 2015 and filed in this action (Attachments).
2 Any Australian external legal advisor to the defendant who has signed and filed the undertaking, attached to this Chamber Summons marked as Attachment 1 (Undertaking), may inspect, access or copy the Attachments.
3 Subject to order 4, the plaintiff is not required to serve the Attachments on the defendant's solicitors.
4 The plaintiff must serve the Attachments on any person referred to in order 2 above who has signed and filed the Undertaking.
5 Liberty to apply.
6 Costs reserved.
13 The restricted access undertaking was attached to the chamber summons and it was in the following terms:
RESTRICTED ACCESS UNDERTAKING
COR 94 of 2015- SUPREME COURT OF WESTERN AUSTRALIA
I, [name of person] of [address of person], external legal adviser to Northern Gulf Petroleum Holdings Limited (NGPH), undertake to the Supreme Court of Western Australia and to Tap Energy (Thailand) Pty Ltd (Tap) that in respect of the attachments to the affidavit of Denis Bouclin sworn on 1 July 2015 (the Second Bouclin Affidavit Attachments):
1 I will not disclose the Second Bouclin Affidavit Attachments or any part of them either directly or indirectly to any person including NGPH, its servants and agents, without the prior written consent of Tap, other than:
(a) a Judge, Master, Registrar or other judicial officer of the Supreme Court of Western Australia or his or her Associate or Secretary or a person employed in the Registry of the Court;
(b) any other external legal adviser to NGPH who is employed by (or is a Partner of) Squire Patton Boggs and who has signed an undertaking (which is substantially the same, in form and content, as this undertaking) in these proceedings in relation to the Second Bouclin Affidavit Attachments;
(c) a secretary or internal service provider performing work for myself or for any person referred to in sub-paragraph (b) above and then only for the purpose of that person taking physical possession of the Second Bouclin Affidavit Attachments to photocopy, collate or image them or type extracts from them for the purposes of the proceedings;
(d) a reservoir engineer located in Australia, independent of NGPH, who has signed and filed an undertaking (which is substantially the same, in form and content, as this undertaking) in these proceedings in relation to the Second Bouclin Affidavit Attachments.
2 I will not use any of the Second Bouclin Affidavit Attachments for any purpose other than the proceedings.
3 Notwithstanding anything in paragraphs 1 and 2 above, I may disclose the Second Bouclin Affidavit Attachments:
(e) as ordered by the Court;
(f) as otherwise required by law;
(g) where any of the Second Bouclin Affidavit Attachments are already in the public domain (unless it is in the public domain because it was read into evidence in these proceedings, in which case I may not disclose the Second Bouclin Affidavit Attachments) other than as a result of any breach of an obligation of confidence or other duty, a breach of this undertaking or a breach of any other confidentiality undertaking given in this proceeding or any implied undertaking.
4 For so long as the Second Bouclin Affidavit Attachments are in my possession, I will ensure that they remain in a secure location at the offices of Squire Patton Boggs, Level 21, 300 Murray Street, Perth WA, where they cannot be accessed by anyone except persons who have executed an undertaking (which is substantially the same, in form and content, as this undertaking).
5 Upon the conclusion of the proceedings (including any appeal) whether by judgment, settlement or otherwise, or upon the conclusion of my involvement in the proceedings (whichever occurs first) any copy of any of the Second Bouclin Affidavit Attachments in my possession will be returned to Corrs Chambers Westgarth within 14 days together with a statement confirming that I no longer have any copy of any of the Second Bouclin Affidavit Attachments in my possession, custody or power.
14 While I was prepared to make an order in terms of the chamber summons, I was not prepared to make an order which required a restricted access undertaking in the form proposed by the plaintiff. It seemed to me the proposed cl 4 of that undertaking was unnecessary. Other clauses of the undertaking offered the plaintiff adequate protection. There was nothing in the evidence to suggest it was necessary for the report to remain in a secure location. Furthermore, the defendant's solicitors indicated this would cause some logistical difficulty. Bearing in mind the undertaking was to be provided by a firm of solicitors, I was simply not satisfied cl 4 was necessary.
15 For these reasons I made orders in terms of the chamber summons with the restricted access undertaking in a modified form.
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