Xstrata Queensland Ltd v Santos Ltd

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.