Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2]

[2012] WASC 179

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TAP (HARRIET) PTY LTD -v- BURRUP FERTILISERS PTY LTD [No 2] [2012] WASC 179

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   31 MAY 2012

FILE NO/S:   CIV 2329 of 2009

BETWEEN:   TAP (HARRIET) PTY LTD

Plaintiff

AND

BURRUP FERTILISERS PTY LTD
Defendant

(BY ORIGINAL ACTION)

BURRUP FERTILISERS PTY LTD
Plaintiff by Counterclaim

AND

TAP (HARRIET) PTY LTD
First Defendant by Counterclaim

APACHE NORTHWEST PTY LTD
Second Defendant by Counterclaim

KUFPEC AUSTRALIA PTY LTD
Third Defendant by Counterclaim

APACHE CORPORATION
Fourth Defendant by Counterclaim

(BY COUNTERCLAIM)
 

Catchwords:

Practice and procedure - Application by non­party to inspect documents - Relevant principles - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 32 r 4, O 67 r 11
Trade Practices Act 1974 (Cth)

Result:

Non-party application allowed in part

Category:    B

Representation:

Original Action

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Applicant:     Pankaj Oswal

Solicitors:

Plaintiff:     King & Wood Mallesons

Defendant:     Ashurst Australia

Applicant:     Murcia Pestell Hillard

Counterclaim

Counsel:

Plaintiff by Counterclaim         :        No appearance

First Defendant by Counterclaim  :        No appearance

Second Defendant by Counterclaim       :        No appearance

Third Defendant by Counterclaim :        No appearance

Fourth Defendant by Counterclaim       :        No appearance

Solicitors:

Plaintiff by Counterclaim         :        Ashurst Australia

First Defendant by Counterclaim  :        Mallesons Stephen Jaques

Second Defendant by Counterclaim       :        Middletons

Third Defendant by Counterclaim :        King & Wood Mallesons

Fourth Defendant by Counterclaim       :        Middletons

Case(s) referred to in judgment(s):

Australian Competition & Consumer Commission (ACCC) v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609

Australian Securities and Investments Commission v Rich [2002] NSWSC 198

Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133

Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074

Dobson v Hastings [1992] Ch 394

Eisa Ltd v Brady [2000] NSWSC 929

Ex Parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177

Hartnell v Commissioner of Taxation (No 1) [2009] FCA 230; (2009) 254 ALR 71

Hogan v Australian Crime Commission [2010] HCA 21; (2001) 240 CLR 651

Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781

Nicholson v Morgan [2012] WASC 65

P v Australian Crime Commission [2008] FCA 1336; (2008) 250 ALR 66

Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd, Ex Parte Merlin BV [2008] FCA 783

Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192

1. LE MIERE J: Mr Pankaj Oswal has applied under O 67 r 11(1) of the Rules of the Supreme Court 1971 (WA) (RSC) for leave to inspect and copy certain documents in these proceedings to which Mr Oswal is not a party. Mr Oswal seeks access to documents in connection with his conduct of proceedings in Texas (Texas Proceeding). I will briefly outline the action in this court and the Texas Proceeding.

This action

1. The first plaintiff (Tap), and the defendants by counterclaim (Apache North West, Kufpec and Apache Corporation), are oil and gas exploration and production companies.  The defendant (Burrup Fertilisers) is the owner and operator of a liquid ammonia plant on the Burrup Peninsular in the north west of Western Australia, which produces and supplies ammonia to local and export markets.  Burrup Holdings Ltd owns 100% of the issued shares in Burrup Fertilisers.  Mr and Mrs Oswal held shares in Burrup Holdings.  On or about 17 December 2010 Mr Carson, Mr Theobald and Mr McEvoy (the Receivers) were appointed as the receivers and managers of all of the assets and undertakings of Burrup Fertilisers and receivers and controllers of certain shares held by Mr Oswal in Burrup Holdings.

2. On 17 December 2001, Tap, Kufpec, Apache North West and companies affiliated with Apache North West or Apache Corporation (the Apache affiliated companies) and Burrup Fertilisers entered into a gas sale and purchase agreement under which the sellers agreed to sell, and Burrup agreed to take and pay for, gas (GSA).

3. At the time of entering into the GSA Tap, Kufpec, Apache North West and the Apache affiliated companies were participants in an unincorporated joint venture known as the Harriet Joint Venture.  The Harriet Joint Venturers held permits or production licenses, or a beneficial interest in the permit or licences the subject of their joint venture.

4. The GSA is a long term contract.  The seller under the contract is to deliver to the buyer on the relevant day a quantity of gas described as the daily delivery quantity or DDQ.  The DDQ is an amount nominated by the buyer within a given tolerance.  Two key provisions of the GSA are that the maximum quantity of gas the sellers shall be obliged to supply over the supply period is a specified quantity and that at any time the sellers shall have sufficient uncommitted proven reserves available for supply to the buyer for the lesser of 20 years and the remaining term of the supply period calculated at the DDQ.

5. The dispute giving rise to these proceedings arises out of notice given by Tap to Burrup Fertilisers that due to adverse developments at a number of exploration and development wells in the Harriet Joint Venture permits or production licenses, the uncommitted proven reserves of the Harriet Joint Venture, including the share of those resources to which Tap was entitled, had fallen below the required level and Tap anticipated being unable to sell or deliver all of its share of the gas to be delivered under the GSA.  Similar notices were given by the other sellers.

6. At the heart of the dispute between the sellers and Burrup Fertilisers are three issues.  First, is the obligation of the sellers to supply gas to Burrup Fertilisers limited to supplying gas available to the sellers as participants in the Harriet Joint Venture?  Second, is the obligation of the sellers to maintain proven reserves of gas confined to gas that the sellers have available for supply as participants in the Harriet Joint Venture?  Third, if the sellers have insufficient uncommitted proven reserves as participants in the Harriet Joint Venture and are unable to supply gas to Burrup Fertilisers pursuant to the terms of the GSA, is Burrup Fertilisers confined to recovering liquidated damages under the GSA or may it pursue other remedies including unliquidated damages?

7. On 9 August 2010 I ordered that there be a separate trial of certain preliminary questions.  The preliminary questions essentially raise the three issues to which I have referred.  The trial of the preliminary questions occurred from 13 to 15 September 2011.  Subsequently there was correspondence from the parties to the court requesting that I defer my judgment in respect of the preliminary questions until specified dates.  I have not yet delivered judgment on those preliminary questions.

The Texas Proceeding

1. Mr Oswal is one of several plaintiffs in the Texas Proceeding in the District Court, 190th District, Harris County, Texas.  Mr Oswal's co‑plaintiffs are his wife and two of his related corporate entities.  The defendant is Apache Corporation.  The Texas Proceeding has been consolidated with another action brought by Burrup Fertilisers against Apache Corporation, Apache Energy Ltd and Apache North West.  In the Texas Proceeding the plaintiffs allege Apache Corporation made a series of representations to them between 2000 and 2002 which induced them to enter into various business arrangements related to the construction of the ammonia plant and the sale of natural gas by a number of gas suppliers (including Apache Corporation and a number of its related entities) to Burrup Fertilisers.  One significant related agreement is the GSA.  The plaintiffs in the Texas Proceeding further allege that certain of the representations made by Apache Corporation were misleading and deceptive and claim damages pursuant to the Trade Practices Act 1974 (Cth) in respect of losses suffered by them as a result of the allegedly misleading and deceptive conduct by Apache Corporation.

2. In September 2011 Apache Corporation made an application to stay the Texas Proceeding on the basis that the Texas Proceeding could not proceed unless and until certain issues were determined in this action.  The application for a stay was heard by the Hon Patricia J Kerrigan on 26 September 2011.  The stay application was supported by submissions to the effect that judgment on the preliminary questions in this action was expected imminently.  The stay was granted.

Receivers discharged and shares sold

1. The Receivers were discharged in respect of the receivership of Burrup Fertilisers on or about 1 February 2012.  On 1 February 2012 Apache Corporation announced that its subsidiary, Apache Energy Ltd, had acquired a 49% interest in Burrup Holdings and Yarra International ASA had increased its ownership in Burrup Holdings to 51%.  It appears that Apache Energy Ltd and Yarra acquired the shares in Burrup Holdings previously held by Mr and Mrs Oswal.  Burrup Holdings and Burrup Fertilisers have been renamed Yarra Pilbara Holdings Ltd and Yarra Pilbara Fertilisers Pty Ltd.  On 13 February 2012 Tap Oil Ltd announced that it had executed an agreement to sell its subsidiary, Tap, to a subsidiary of Apache Corporation.

Mr Oswal's application to lift the stay of the Texas Proceeding

1. Mr Oswal and the other plaintiffs in the Texas Proceeding brought a motion to lift the stay.  The motion came on for hearing before Judge Kerrigan on 5 March 2012.  Mr Oswal has provided to the court a copy of the court reporter's record of the hearing before Judge Kerrigan, held in the District Court, Harris County, Texas on 5 March 2012.  Counsel for the Apache parties submitted that:

   The whole case for Oswal and the Burrup plaintiffs, deals with this gas sales agreement, and we've shown you that before.  And I've handed a copy up.  You will see that … and as we represented then, Justice Le Miere of the Western District of … Western Australia, a very distinguished judge there, had a three day hearing on construction of this contract, and particularly gas interruption and gas disruption provisions, which are at the heart of both Mr Oswal's case and the Burrup case.  He is expected to have a decision forthcoming.

2. It appears from the record that the pending decision of the preliminary questions argued in this court on 13 ‑ 15 September 2011 was at least one of the reasons for the Texas Court granting the stay of the proceedings in September 2011 and declining to lift the stay at the hearing on 5 March 2012.

Power to grant access

1. Mr Oswal seeks access to the following documents, or categories of documents:

   1.The writ and statement of claim including copies of any cross‑claims.

   2.All defences and replies.

   3.Any chambers summons and supporting affidavits.

   4.Any submissions filed in the action.

   5.Any order issued by the court on or after 13 September 2011.

   6.All correspondence exchanged between the court and the parties on or after 13 September 2011.

2. The court has an inherent power to make material received in evidence available on request:  Australian Competition & Consumer Commission (ACCC) v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 [6] (Finkelstein J). In Australian Securities and Investments Commission v Rich [2002] NSWSC 198 Barrett J referred to the provision in the Supreme Court Rules (NSW) that a person may not search in a registry for or inspect any document or thing in any proceedings without the leave of the court. His Honour stated:

   The considerations to be applied in deciding whether such leave should be granted are, to some extent, reflected in Practice Note 97 (9 March 1988, see (1998) 43 NSWLR 1) and are, in a more general sense, an aspect of the inherent jurisdiction of the court to control and superintend its own proceedings so as to protect and further the due administration of justice [6].

3. This court has made rules to facilitate the making of documents filed in the registry available. Order 67 r 11(1) of the RSC states:

   11.Inspection of documents in Central Office

   (1)Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Central Office, namely ‑

   (a)the copy of any writ, and the statement of claim (if any) indorsed thereon under Order 6 rule 3; and

   (b)any originating application made under the Corporations Act 2001 of the Commonwealth; and

   (ba)any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005; and

   (c)any judgment or order given or made in court or the copy of any such judgment or order; and

   (d)with the leave of the Court or a registrar, any other document.

4. It should be noted that O 67 r 11 refers only to documents filed in the Central Office. The Consolidated Practice Directions require parties to deliver an outline of submissions to the associate to the judge hearing the application but does not require the written submissions to be filed. It is not the practice for written submissions to be filed in the Central Office. The parties from time to time correspond with the court. That correspondence is not filed in the Central Office although it is, as a matter of practice and convenience, kept on the court file relating to the matter.

5. Order 67 r 11 does not authorise the court to grant access to a non‑party to documents delivered to the judge or the court if they are not filed at the Central Office. However, the inherent power of the court to control and superintend its own proceedings so as to protect and further the due administration of justice empowers the court to grant access to a non‑party to documents delivered to the judge or the court even though they have not been filed at the Central Office.

Writ and statement of claim

1. Mr Oswal is entitled, on payment of the prescribed fee, to inspect and take a copy of the writ and the statement of claim indorsed thereon.  The statement of claim indorsed on the writ has subsequently been amended.  Mr Oswal may only inspect the amended statements of claim with leave of the court.  I will consider that application together with the application to inspect and copy other documents.  Mr Oswal is entitled, on payment of the prescribed fee, to inspect and copy any orders made by the court.  Mr Oswal has sought access only to orders issued by the court on or after 13 September 2011.  The only order issued by the court since 13 September 2011 is an order made on 27 October 2011 refusing a refund of fees.  Mr Oswal may inspect and copy that order if he wishes.

Principles relating to access

1. The principles relating to the exercise of the court's discretion to grant access to documents on the court file or produced to the court have been considered by this court on many occasions including Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192; Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133; Ex Parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177; and Nicholson v Morgan [2012] WASC 65. The exercise of discretion by courts in other jurisdictions is the subject of many decisions including Dobson v Hastings [1992] Ch 394 and Dian AO v Davis Frankel & Mead(a firm) [2005] 1 All ER 1074 in England; Eisa Ltd v Brady [2000] NSWSC 929; and Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 78181 in New South Wales; and ACC v ABB Transmission [No 3]; Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd, Ex Parte Merlin BV [2008] FCA 783; and Hartnell v Commissioner of Taxation (No 1) [2009] FCA 230; (2009) 254 ALR 71 in the Federal Court.

2. A consideration of those authorities, and the principles underlying them, discloses that as a general rule the court will grant third parties access to material that has been admitted into evidence or referred to, or considered by, the judge in the course of a hearing to which the public are admitted.  Affidavits, including annexures, and other material received by the court as evidence are considered by the court as part of its judicial function.  That is so whether the affidavits were read out in the course of the hearing or read by the judge in private as part of his preparation for the hearing or consideration of his decision.  Such material ought to be treated as if it had been read in open court and anyone ought to be allowed reasonable access to it in accordance with the principle of open justice.  The same principle applies to any other documents, such as pleadings or written submissions, that were referred to, or by, the judge in the course of the hearing.

3. The principle of open justice does not require that all documents on the court file should be open to inspection by any person.  The principle applies to the judicial process not to the court file.  In P v Australian Crime Commission [2008] FCA 1336; (2008) 250 ALR 66 Emmett J said:

   However, [the principle of open justice] has nothing to do with material that, albeit it is on the court's file and might be available for one of the parties to deploy at a trial or at a hearing, has not in fact been admitted into evidence.  No principle of open justice requires that a person other than the parties should, in the ordinary course, have access to material that is not in evidence.  The fact that the parties have filed affidavits in anticipation of a hearing does not of itself compel them to rely on the affidavits.  It may be that an opposing party could tender an affidavit against the party who filed it.  Such an affidavit would then be in the same category as any other evidence.  Until that time, in the ordinary course, however, there is no reason why a person other than the parties should have access to the material, simply because it is on the court's file.  In the ordinary course, exhibits to affidavits should not be filed and should therefore not be on the court file.  It is only when exhibits are tendered that they become part of the court record.

   From the point of view of open justice, there is no reason to grant access to material that has not been tendered by either party or, if tendered, has not been accepted into evidence [19] ‑ [20].

   The High Court subsequently held that Emmet J was correct in that conclusion:  Hogan v Australian Crime Commission [2010] HCA 21; (2001) 240 CLR 651 [40].

4. Whether the court should exercise its discretion to give a non‑party leave to inspect and copy a document in each case must be exercised according to the particular circumstances.  There may be exceptional circumstances in which access will be granted to a document on the court file notwithstanding that it has not been received in evidence or referred to at a hearing.

Access in this case

1. Mr Oswal seeks access to the pleadings, amongst other documents on the court file, on the ground that the issues arising in this action are relevant to the claims he is pursuing in the Texas Proceeding and to his rights arising out of the sale of his shares in Yarra Pilbara Holdings Ltd by the Receivers.

2. Parts, though not all, of the pleadings were referred to by counsel during the course of the trial of the preliminary questions in this action.  That is a sufficient reason for allowing Mr Oswal access to at least those parts of the pleadings that were referred to at the hearing.  However, Mr Oswal should be given access to all of the current pleadings because I am satisfied that the issues in this action are relevant to the proceedings being pursued by Mr Oswal in Texas. In the Texas Proceeding counsel for Apache Corporation submitted to Judge Kerrigan that the whole case for Mr Oswal and the Burrup plaintiffs deals with the gas sales agreement that is the subject of this action ‑ the GSA.  Counsel for Apache Corporation submitted to Judge Kerrigan that the construction of the gas interruption and gas disruption provisions of the GSA 'are at the heart of both Mr Oswal's case and the Burrup case' in the Texas Proceeding.  The provisions of the GSA, the competing constructions of which are in issue in this action, are sufficiently relevant and important in the Texas Proceeding that the Texas Proceeding has been stayed because my judgment on the preliminary questions in this action was anticipated.

1. For those reasons Mr Oswal should be given access to the current pleadings, that is, the further re‑amended statement of claim filed 25 August 2011, the re‑amended defence and counterclaim filed 1 September 2011, the re‑amended defence to re‑amended defence and counterclaim filed 9 September 2011, the re‑amended defence to re‑amended defence to counterclaim filed 9 September 2011 and the re‑amended reply and first and third counterclaim defendants' defence to counterclaim filed 12 September 2011.

2. I will not grant Mr Oswal access to the chamber summonses and supporting affidavits filed in the action. Mr Oswal has not identified the chamber summonses he seeks access to. My review of the list of documents filed on the court file discloses only two summonses. A summons to attend status conference for case management hearings dated 29 July 2009 and a summons issued on the court's own motion of 19 August 2009 for directions. The principle of open justice does not require Mr Oswal be given access to either of those documents. It has not been established that those summonses are relevant to the Texas Proceeding or that there is any other good reason why Mr Oswal should be given access to them. There was also a summons issued pursuant to O 32 r 4 seeking the trial of separate questions. The summons was supported by an affidavit. The matter relates to the procedure of the court leading to the trial of separate questions. It is not relevant to the matters in issue in the Texas Proceeding or the conduct of that proceeding. The principle of open justice does not require that Mr Oswal be given access to those documents. The same observations apply to the amended summons for orders for a separate trial filed on 7 April 2010 together with a supporting affidavit.

3. Each of the parties provided written submissions to the court in relation to the trial of separate questions heard on 13 ‑ 15 September 2011.  I read and considered those submissions in preparation for the hearing and they were referred to by counsel in the course of the hearing.  In accordance with the principles of open justice Mr Oswal should be given access to those documents.

4. The final category of documents to which Mr Oswal seeks access is correspondence exchanged between the court and the parties on or after 13 September 2011.  It will be a rare case where a non‑party will be granted access to correspondence between the court and parties.  However, this is an exceptional case.  There has been correspondence from the parties to the court requesting that I defer my judgment in respect of the preliminary questions of law heard in September 2011 until specified dates.  In the course of the Texas Proceeding the presiding judge asked counsel and attorney for the Apache parties whether Apache had asked this court to withhold its ruling or requested a temporary withholding of its ruling on the preliminary questions heard in September 2011.  Counsel for Apache subsequently wrote to the Texas court informing the presiding judge that he had not been as clear in his answer as he should have been and stated, to clear up any possible confusion:

   A court in Australia was informed of the possibility of settlement and the suggestion was made that it would be prudent to wait and see exactly which parties would be remaining in that litigation and how the sale impacted ongoing litigation before the court issued a preliminary ruling.  The premise of my answer, however, remains accurate ‑ that litigation, as well as a plethora of other Australian litigation, remains ongoing.

5. The solicitors for the Apache parties have subsequently provided Mr Oswal's solicitors with a copy of the communications between the court and Apache's solicitors concerning requests to defer delivery of judgment on the separate or preliminary questions heard in September 2011.  The court has been informed that Apache's solicitors have provided to Mr Oswal's solicitors copies of communications between the court and Apache's solicitors up to 4 April 2012.  There have been further communications from Apache's solicitors to the court since that date.  I will give leave to Mr Oswal to access and copy emails of 15 April 2012 and 16 May 2012 from Apache's solicitors, Middletons, to the court concerning deferring judgment of the preliminary questions.

Conclusion

1. Subject to questions of confidentiality, which I will address, Mr Oswal should be given leave to access and copy the following documents or categories of documents:

   1.The writ with statement of claim indorsed.

   2.The current pleadings identified.

   3.Written submissions filed in relation to the preliminary questions tried on 13 ‑ 15 September 2011.

   4.Emails of 15 April 2012 and 16 May 2012 from Middletons to the Associate to Justice Le Miere.

2. In the course of this matter I have made a number of orders that documents remain confidential.  Mr Oswal's access to the documents is to be subject to those orders for confidentiality.  I will defer the making of orders or directions granting Mr Oswal leave to access and copy the documents I have identified for seven days to enable the parties to the action to identify any documents, or parts of the documents to which I have said Mr Oswal should have access, which are subject to the confidentiality orders or directions I have made in this action.