XY v UV

Case [2024] QSC 262

SUPREME COURT OF QUEENSLAND

CITATION:

XY v UV [2024] QSC 262

PARTIES:

XY

(applicant)

v
UV

(respondent)

FILE NO/S:

BS 14083 of 2024

DIVISION:

Trial division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2024

JUDGE:

Cooper J

ORDER:

1.   The originating application filed on 18 October 2024 is dismissed.

2.   Within seven days of the date of this judgment the parties are to bring in short minutes of order recording the terms of a suppression order to be made by the Court in respect of material placed before the Court, and any transcript produced, in connection with this proceeding.

3.   Until 4.00pm on 8 November 2024 or further order, this judgment and its contents are not to be disclosed, by publication or otherwise, to any person other than (a) the parties and their legal representatives; and (b) the Arbitrator.

4.   I will hear the parties as to costs.

CATCHWORDS:

ARBITRATION – CONDUCT OF ARBITRAL PROCEEDINGS – PROCEDURE AND EVIDENCE – EVIDENCE AND OTHER MATTERS – where the parties’ dispute has been referred to arbitration – where the applicant seeks relief from producing certain documents sought through discovery in the arbitration to either the arbitrator or to the respondent on the grounds of parliamentary privilege and public interest immunity – where the respondent argues that the Court does not have jurisdiction to rule on those claims raised in the arbitration because to do so would involve the Court intervening in the arbitration and s 5 of the Commercial Arbitration Act 2013 (Qld) has displaced the Court’s jurisdiction to determine those claims – whether s 5 of the Commercial Arbitration Act 2013 (Qld) displaces the Supreme Court’s inherent jurisdiction to determine the parliamentary privilege and public interest immunity claims because those claims are currently before the arbitrator for determination

ARBITRATION – CONDUCT OF ARBITRAL PROCEEDINGS – PROCEDURE AND EVIDENCE – EVIDENCE AND OTHER MATTERS – where the respondent alternatively argues that relief should be refused on discretionary grounds because the applicant has not challenged the arbitrator’s determination that he has jurisdiction to determine the privilege and immunity claims – where the applicant raised its claims as a basis for resisting the production of documents sought in the arbitration where the arbitrator had made procedural orders scheduling an evidentiary hearing – where the parties had duties under statute to progress the arbitral proceedings expeditiously and to comply with any order or direction of the tribunal without undue delay – where the applicant argued before the arbitrator that the arbitrator did not have jurisdiction to rule on the privilege and immunity claims but those arguments were rejected – where the applicant did not seek a decision from the Supreme Court as to the arbitrator’s jurisdiction but rather brought the present proceedings – where the effect of granting the relief sought will nevertheless be to prevent the arbitrator from exercising jurisdiction over the privilege and immunity claims – whether the Court…

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AGLC
XY v UV [2024] QSC 262
Case
[2024] QSC 262
Decision Date

CaseChat Overview and Summary

In the matter of XY v UV, the applicant sought relief from producing certain documents to either the arbitrator or the respondent on the grounds of parliamentary privilege and public interest immunity. The respondent argued that the court did not have jurisdiction to rule on these claims raised in the arbitration because to do so would involve the court intervening in the arbitration, and section 5 of the Commercial Arbitration Act 2013 (Qld) had displaced the court's jurisdiction to determine those claims. The respondent alternatively argued that relief should be refused on discretionary grounds because the applicant had not challenged the arbitrator's determination that he had jurisdiction to determine the privilege and immunity claims.

The court considered whether section 5 of the Commercial Arbitration Act 2013 (Qld) displaced the Supreme Court's inherent jurisdiction to determine the parliamentary privilege and public interest immunity claims because those claims were currently before the arbitrator for determination. The court also considered whether the court should exercise its discretion to grant the relief sought, given the effect of granting the relief would nevertheless be to prevent the arbitrator from exercising jurisdiction over the privilege and immunity claims. The court held that section 5 of the Commercial Arbitration Act 2013 (Qld) had not displaced the inherent jurisdiction of the court to determine claims of parliamentary privilege and public interest immunity that are raised in an arbitration conducted pursuant to the act. However, the court considered it appropriate to leave those claims to be determined by the arbitrator, given the stage that the arbitration had reached. Accordingly, the court dismissed the originating application.

The court ordered that the originating application filed on 18 October 2024 is dismissed, that within seven days of the date of the judgment the parties are to bring in short minutes of order recording the terms of a suppression order to be made by the court in respect of material placed before the court, and any transcript produced, in connection with the proceeding, that until 4.00pm on 8 November 2024 or further order, this judgment and its contents are not to be disclosed, by publication or otherwise, to any person other than the parties and their legal representatives and the arbitrator, and that the court will hear the parties as to costs.

Orders

Orders of the court

1. The originating application filed on 18 October 2024 is dismissed.

2. Within seven days of the date of this judgment the parties are to bring in short minutes of order recording the terms of a suppression order to be made by the Court in respect of material placed before the Court, and any transcript produced, in connection with this proceeding.

3. Until 4.00pm on 8 November 2024 or further order, this judgment and its contents are not to be disclosed, by publication or otherwise, to any person other than (a) the parties and their legal representatives; and (b) the Arbitrator.

4. I will hear the parties as to costs.

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

XY accepts that if it is granted the relief it seeks, the Arbitrator may be prevented from exercising the jurisdiction which he has found he possesses, and which he has decided it is appropriate for him to exercise.[3] XY further accepts that this would amount to an intervention in the arbitration.[4] Nevertheless, XY submits that this intervention is permitted because the determination of PP and PII claims are not matters governed by the CAA, and so not subject to the prohibition on intervention imposed by s 5.[3]Transcript 1-34:30-35.[4]Transcript 1-35:4-10.Relevant decisions preceding the enactment of the CAA XY relies upon the decision of the New South Wales Court of Appeal in Commonwealth v Cockatoo Dockyard Pty Ltd[5] as authority for the proposition that there are bounds to the power of an arbitral tribunal to reach into questions of fundamental public interest. [5](1995) 36 NSWLR 662 (Cockatoo Dockyard). Cockatoo Dockyard involved consideration of s 14 of the Commercial Arbitration Act 1984 (NSW) (the 1984 NSW Act) which relevantly provided: “Subject to this Act and to the arbitration agreement, the arbitrator or umpire may conduct proceedings under that agreement in such manner as the arbitrator or umpire thinks fit.” The arbitrator made confidentiality orders under that power which had the effect of requiring that the Commonwealth to keep confidential, and not use or disclose, its own documents, being documents that were not specifically brought into existence in connection with the with the arbitration.[6] The Commonwealth argued that these orders went beyond the power of the arbitrator and unreasonably interfered with its governmental rights and duties and that the court had the power and duty to provide relief by setting aside the impugned orders. [6]Cockatoo Dockyard, 664F-G. Kirby P (as his Honour then was; Priestley JA agreeing) commenced his analysis by considering the power of the court to review an interlocutory order or direction of an arbitrator. This was done in the context of decisions of the Court of Appeal, which were relied upon by the primary judge in rejecting the Commonwealth’s submission that the court had jurisdiction to intervene, which identified a general policy of non-interference by the courts in arbitrations under the 1984 NSW Act reflecting amendments to the legislation which, in turn, had followed strongly expressed parliamentary statements to that end.[7][7]Cockatoo Dockyard, 670F-G citing Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203; Natoli v Walker (Court of Appeal, 26 May 1994, unreported). As to the court’s inherent jurisdiction, and the statutory expression of that jurisdiction in s 23 of the Supreme Court Act 1970 (the equivalent of which for this proceeding can now be found in s 58 of the Constitution of Queensland 2001), Kirby P observed that where it is suggested such jurisdiction is ousted by legislation it is necessary, as a matter of statutory construction, for this to be demonstrated by reference to express words or necessary implication.[8][8]Cockatoo Dockyard, 674D-E and the cases cited there.

Ratio Decidendi

Legal Principle Established

For the reasons which follow, I have concluded that s 5 of the CAA has not displaced the inherent jurisdiction of the court to determine claims of PP and PII that are raised in an arbitration conducted pursuant to the CAA. However, given the stage that the arbitration, and particularly the agitation of the PP and PII claims in the arbitration, has reached I consider it is appropriate to leave those claims to be determined by the Arbitrator. That is, I accept UV’s submission that in the circumstances of this case the discretionary relief XY seeks should not be granted. Accordingly, the originating application will be dismissed.The course of the arbitration to date Pursuant to the terms of the arbitration agreement, UV issued a notice referring the dispute to arbitration in December 2023. As already observed, the Arbitrator was appointed on 19 February 2024. Since that time, the parties have progressed the conduct of the arbitration in accordance with procedural orders made by the Arbitrator. Relevantly for the purposes of this proceeding, after the exchange of pleadings each party was to deliver to the other a list of requests for documents, or categories of documents, that the requesting party considered to be relevant to the issues in dispute and which should be required to be produced. UV identified the documents it sought from XY and XY responded by indicating its objection to producing some documents. The Arbitrator then issued a decision on 26 June 2024 addressing UV’s requests and XY’s response. XY was directed to produce documents identified in a schedule to the decision, subject to any properly formulated objection to produce documents which are the subject of (relevantly) legal professional privilege or any other privilege from disclosure such as PII. Following that decision, XY discovered a total of 6,490 documents. Of those documents:(a)1,918 documents were produced free from redactions; (b)945 documents were produced in redacted form; and (c)3,627 documents were wholly withheld from production. XY articulated the basis of its objections to producing documents (in whole or in part) which included claims of PP and PII. On 13 September 2024, UV informed XY of its challenges to XY’s objections to producing documents in the arbitration, including the objections based on XY’s claims of PP and PII. On the same date, UV requested that the Arbitrator convene a procedural hearing for the purposes of determining the appropriate forum and procedure to determine XY’s objections to the production of documents. The Arbitrator convened a hearing on 4 October 2024 for that purpose and received written and oral submissions from the parties. At that hearing, there was no dispute that UV’s challenge to XY’s objections to production on the grounds of legal professional privilege and without prejudice privilege should be determined by the Arbitrator. There was, however, a dispute about the appropriate forum and procedure for determining XY’s objections to production by reason of its claims of PP and PII.