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Xstrata Queensland Ltd v Santos Ltd

Xstrata Queensland Ltd v Santos Ltd

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Case Copied 7 November 2005 73 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323

PARTIES:

XSTRATA QUEENSLAND LIMITED
(ACN 009 814 019)
(applicant)
v
SANTOS LIMITED; SANTOS PETROLEUM PTY LTD; SANTOS AUSTRALIAN HYDROCARBONS PTY LTD; VAMGAS PTY LTD; ORIGIN ENERGY RESOURCES LIMITED; ORIGIN ENERGY CSG LIMITED; DELHI PETROLEUM PTY LTD
(respondents)

SANTOS LIMITED; SANTOS PETROLEUM PTY LTD; SANTOS AUSTRALIAN HYDROCARBONS PTY LTD; VAMGAS PTY LTD; ORIGIN ENERGY RESOURCES LIMITED; ORIGIN ENERGY CSG LIMITED; DELHI PETROLEUM PTY LTD
(applicants)
v
XSTRATA QUEENSLAND LIMITED
(ACN 009 814 019)
(respondent)

FILE NO/S:

BS 7604 of 2005
BS 7672 of 2005

DIVISION:

Trial Division

PROCEEDING:

Applications to set aside subpoenas

ORIGINATING COURT: Brisbane

DELIVERED ON:

7 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7, 11 and 12 October 2005

JUDGE:

McMurdo J

ORDER:

1.   The subpoenas served by Xstrata Queensland Ltd (“Xstrata”) upon Incitec Pivot Pty Ltd and Queensland Alumina Ltd be set aside

2.   The subpoena served by Xstrata upon Energex Retail Pty Ltd be varied by deleting paragraphs 9 and 10

3.   The subpoenas served by Xstrata upon Pelican Point Power Limited, Qenos Pty Ltd, Queensland Power Trading Corporation, OneSteel Manufacturing Pty Ltd, Ecogen Energy Pty Ltd, Australian Paper Pty Ltd, CS Energy Limited, BlueScope Steel Ltd, Adelaide Brighton Ltd, Adelaide Brighton Cement, Osborne Cogeneration Pty Ltd, Queensland Nitrates Pty Ltd, Comalco Aluminium Ltd and BP Refinery (Bulwer Island) Pty Ltd be varied by deleting paragraphs 4 and 5

4.   The subpoena served by Xstrata upon BHP Petroleum (Victoria) Pty Ltd be varied by deleting paragraph 4

5.   The subpoena served by Xstrata upon AGL Wholesale Gas (SA) Pty Ltd be varied by deleting paragraphs 8 and 9

6.   The subpoena served by Xstrata upon Australian Gas Light Company be varied by deleting paragraphs 10 and 11

7.   The subpoena served by Xstrata upon Arrow Energy NL be varied by deleting paragraph 6

8.   The subpoena served by Xstrata upon TRUenergy Pty Limited be varied by deleting paragraphs 4, 7, 9 and 10

9.   The subpoena served by Xstrata upon Origin Energy Retail Ltd be varied by deleting paragraphs 3, 7, 10 and 11

10. The subpoena served by Xstrata upon Origin Energy CSG Marketing Pty Ltd be varied by excluding the contract referred to in paragraph 18(b) of the affidavit of Mr Giaouris filed 7 October 2005 and deleting paragraphs 4, 5, 7 and 8

11. The subpoena served by Xstrata upon the Oil Company of Australia (Moura) Pty Ltd be varied by deleting paragraph 3

12. The subpoena served by Santos Limited, Santos Petroleum Pty Ltd, Santos Australian Hydrocarbons Pty Ltd, Vamgas Pty Ltd, Origin Energy Resources Limited, Origin Energy CSG Limited and Delhi Petroleum Pty Ltd (“the Producers”) upon Energex Retail Pty Ltd be varied by deleting subparagraph (a) of paragraph 3

13. The subpoenas served by the Producers upon Esso Australia Resources Pty Ltd, Esso Australia Pty Ltd and BHP Billiton Petroleum (Bass Strait) Pty Ltd be…

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] QSC 323
Decision Date: 7 November 2005

CaseChat Overview and Summary

The parties to this case, Xstrata Queensland Ltd and Santos Ltd, were engaged in an arbitration proceeding concerning the price of gas supplied under a contract. The court was asked to decide several legal issues, including whether the referral of the dispute between the parties to the contract was an “arbitration” within the meaning of the Commercial Arbitration Act, whether the court had the power to issue subpoenas before the final hearing by the arbitrators, and whether the subpoenaed documents were apparently relevant to the subject matter of the arbitration. Additionally, the court had to consider whether it ought to exercise its discretion to set aside the subpoenas when balancing the commercially sensitive and confidential nature against the relevance of the documents required to be produced under the subpoenas.

The court concluded that the referral of the dispute to arbitration was indeed an arbitration within the meaning of the Commercial Arbitration Act, giving the court power to issue subpoenas under s 47. However, the court found that it did not have the power to issue subpoenas before the final hearing by the arbitrators. The court also found that the subpoenaed documents were apparently relevant to the subject matter of the arbitration. In exercising its discretion, the court decided to set aside some subpoenas and vary others, taking into account the commercially sensitive and confidential nature of the documents against the relevance of the documents required to be produced under the subpoenas.

The final orders of the court included setting aside some subpoenas served by Xstrata and varying others, as well as varying subpoenas served by Santos and its associated companies. The court also ordered that each party was to bear its own losses and expenses, including legal costs on an indemnity basis, incurred in responding properly to the subpoenas. Furthermore, the court directed the parties to submit written submissions regarding the costs of the applications, with specific page limits for each party.

Orders

Orders of the court

1. The subpoenas served by Xstrata Queensland Ltd (“Xstrata”) upon Incitec Pivot Pty Ltd and Queensland Alumina Ltd be set aside

2. The subpoena served by Xstrata upon Energex Retail Pty Ltd be varied by deleting paragraphs 9 and 10

3. The subpoenas served by Xstrata upon Pelican Point Power Limited, Qenos Pty Ltd, Queensland Power Trading Corporation, OneSteel Manufacturing Pty Ltd, Ecogen Energy Pty Ltd, Australian Paper Pty Ltd, CS Energy Limited, BlueScope Steel Ltd, Adelaide Brighton Ltd, Adelaide Brighton Cement, Osborne Cogeneration Pty Ltd, Queensland Nitrates Pty Ltd, Comalco Aluminium Ltd and BP Refinery (Bulwer Island) Pty Ltd be varied by deleting paragraphs 4 and 5

4. The subpoena served by Xstrata upon BHP Petroleum (Victoria) Pty Ltd be varied by deleting paragraph 4

5. The subpoena served by Xstrata upon AGL Wholesale Gas (SA) Pty Ltd be varied by deleting paragraphs 8 and 9

6. The subpoena served by Xstrata upon Australian Gas Light Company be varied by deleting paragraphs 10 and 11

7. The subpoena served by Xstrata upon Arrow Energy NL be varied by deleting paragraph 6

8. The subpoena served by Xstrata upon TRUenergy Pty Limited be varied by deleting paragraphs 4, 7, 9 and 10

9. The subpoena served by Xstrata upon Origin Energy Retail Ltd be varied by deleting paragraphs 3, 7, 10 and 11

10. The subpoena served by Xstrata upon Origin Energy CSG Marketing Pty Ltd be varied by excluding the contract referred to in paragraph 18(b) of the affidavit of Mr Giaouris filed 7 October 2005 and deleting paragraphs 4, 5, 7 and 8

11. The subpoena served by Xstrata upon the Oil Company of Australia (Moura) Pty Ltd be varied by deleting paragraph 3

12. The subpoena served by Santos Limited, Santos Petroleum Pty Ltd, Santos Australian Hydrocarbons Pty Ltd, Vamgas Pty Ltd, Origin Energy Resources Limited, Origin Energy CSG Limited and Delhi Petroleum Pty Ltd (“the Producers”) upon Energex Retail Pty Ltd be varied by deleting subparagraph (a) of paragraph 3

13. The subpoenas served by the Producers upon Esso Australia Resources Pty Ltd, Esso Australia Pty Ltd and BHP Billiton Petroleum (Bass Strait) Pty Ltd be varied by deleting the words “During the first six months of supply of natural gas pursuant to the contract or” of subparagraphs (a) of paragraphs 3 and 6 and inserting after the word “issued” the words “for gas supplied” in paragraphs 3 and 6

14. The subpoenas served by the Producers upon BHP Billiton Limited, The Australian Gas Light Company and TRUenergy Pty Limited be varied by deleting the words “During the first six months of supply of natural gas pursuant to the contract or” and inserting after the word “issued” the words “for gas supplied” in paragraphs 3, 6, 9 and 12

15. The subpoenas served by the Producers upon BHP Billiton Minerals Pty Ltd, AGL Energy Sales and Marketing Limited, Origin Energy LPG Ltd and Origin Energy (Vic) Pty Ltd be varied by deleting the words “During the first six months of supply of natural gas pursuant to the contract or” and inserting after the word “issued” the words “for gas supplied” in paragraph 3

16. The subpoena served by the Producers upon Origin Energy Retail Ltd be varied by deleting the words “During the first six months of supply of natural gas pursuant to the contract or” and inserting after the word “issued” the words “for gas supplied” in paragraphs 3, 6 and 9

17. The subpoena served by the Producers upon Gascor Pty Ltd be varied by deleting paragraphs 7 to 18 and the words “During the first six months of supply of natural gas pursuant to the contract or” and inserting after the word “issued” the words “for gas supplied” in paragraphs 3 and 6

18. Each party required to comply with a subpoena will have its loss and expense, including its legal costs on an indemnity basis, incurred in responding properly to the subpoena, to be agreed or failing agreement, to be assessed

19. In the case of each subpoena which has been the subject of an application to set it aside, the subpoena will be varied so as to require production on 22 November 2005 or such later date as permitted by the arbitrators

20. In each case it will be ordered that any document produced to the arbitrators under the subpoena will not be inspected by any person, other than the arbitrators and lawyers who are nominated by the arbitrators, except by leave of the arbitrators given no less than seven days after notice to the party which produced the document of a proposal that leave be given. The arbitrators may authorise nominated lawyers to receive copies of a document on such terms as the arbitrators think appropriate to ensure that only nominated lawyers, and other persons authorised by them to see the document, will have a copy

21. Each party is directed to deliver to my associate within seven days a written submission as to the costs of these applications. For each of Xstrata and the Producers, the submissions are not to exceed, in total, four pages. Any submission by any other representative, is not to exceed two pages

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:	Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323
PARTIES:	XSTRATA QUEENSLAND LIMITED (ACN 009 814 019) (applicant) v SANTOS LIMITED; SANTOS PETROLEUM PTY LTD; SANTOS AUSTRALIAN HYDROCARBONS PTY LTD; VAMGAS PTY LTD; ORIGIN ENERGY RESOURCES LIMITED; ORIGIN ENERGY CSG LIMITED; DELHI PETROLEUM PTY LTD (respondents) SANTOS LIMITED; SANTOS PETROLEUM PTY LTD; SANTOS AUSTRALIAN HYDROCARBONS PTY LTD; VAMGAS PTY LTD; ORIGIN ENERGY RESOURCES LIMITED; ORIGIN ENERGY CSG LIMITED; DELHI PETROLEUM PTY LTD (applicants) v XSTRATA QUEENSLAND LIMITED (ACN 009 814 019) (respondent)
FILE NO/S:	BS 7604 of 2005 BS 7672 of 2005
DIVISION:	Trial Division
PROCEEDING:	Applications to set aside subpoenas
ORIGINATING COURT:	Brisbane
DELIVERED ON:	7 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7, 11 and 12 October 2005
JUDGE:	McMurdo J
ORDER:	1. The subpoenas served by Xstrata Queensland Ltd (“Xstrata”) upon Incitec Pivot Pty Ltd and Queensland Alumina Ltd be set aside 2. The subpoena served by Xstrata upon Energex Retail Pty Ltd be varied by deleting paragraphs 9 and 10 3. The subpoenas served by Xstrata upon Pelican Point Power Limited, Qenos Pty Ltd, Queensland Power Trading Corporation, OneSteel Manufacturing Pty Ltd, Ecogen Energy Pty Ltd, Australian Paper Pty Ltd, CS Energy Limited, BlueScope Steel Ltd, Adelaide Brighton Ltd, Adelaide Brighton Cement, Osborne Cogeneration Pty Ltd, Queensland Nitrates Pty Ltd, Comalco Aluminium Ltd and BP Refinery (Bulwer Island) Pty Ltd be varied by deleting paragraphs 4 and 5 4. The subpoena served by Xstrata upon BHP Petroleum (Victoria) Pty Ltd be varied by deleting paragraph 4 5. The subpoena served by Xstrata upon AGL Wholesale Gas (SA) Pty Ltd be varied by deleting paragraphs 8 and 9 6. The subpoena served by Xstrata upon Australian Gas Light Company be varied by deleting paragraphs 10 and 11 7. The subpoena served by Xstrata upon Arrow Energy NL be varied by deleting paragraph 6 8. The subpoena served by Xstrata upon TRUenergy Pty Limited be varied by deleting paragraphs 4, 7, 9 and 10 9. The subpoena served by Xstrata upon Origin Energy Retail Ltd be varied by deleting paragraphs 3, 7, 10 and 11 10. The subpoena served by Xstrata upon Origin Energy CSG Marketing Pty Ltd be varied by excluding the contract referred to in paragraph 18(b) of the affidavit of Mr Giaouris filed 7 October 2005 and deleting paragraphs 4, 5, 7 and 8 11. The subpoena served by Xstrata upon the Oil Company of Australia (Moura) Pty Ltd be varied by deleting paragraph 3 12. The subpoena served by Santos Limited, Santos Petroleum Pty Ltd, Santos Australian Hydrocarbons Pty Ltd, Vamgas Pty Ltd, Origin Energy Resources Limited, Origin Energy CSG Limited and Delhi Petroleum Pty Ltd (“the Producers”) upon Energex Retail Pty Ltd be varied by deleting subparagraph (a) of paragraph 3 13. The subpoenas served by the Producers upon Esso Australia Resources Pty Ltd, Esso Australia Pty Ltd and BHP Billiton Petroleum (Bass Strait) Pty Ltd be…