Apache Northwest Pty Ltd & Ors v Western Power Corporation & Anor [1998] WASCA 127 - WASCA 1998 case summary — Zoe

"If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case. Small's case and Burchard's case did not directly deal with the present question. Jordan CJ quoted [at 574] as his authority the passage in Burchard's case earlier quoted by me, but what he said went far beyond it and, in bold but imprecise outline, referred to the essential ingredients of the power of the judge. Contrary to the very passage in Burchard's case [at 247, 248] cited by him, he acknowledged [at 574] the power of the judge to hand the documents to a party, and for a party to inspect them merely 'with a view' to tendering them. He accepted there was a discretion in the judge to permit or refuse inspection. He did not spell out what he meant precisely by the words 'with a view' or what he meant by 'tendered', and he did not, as in Burchard's case [at 247-248] purport to limit the power to that imprecisely stated by him. In my view these dicta, long standing as they are and impressive as is their source, should not be understood as laying down, as would a rule of court, some arbitrary limitation on the exercise of the wide discretion of the judge to permit the documents to be used for the purpose of providing him or the jury, in the end, with the best available evidence testing by the accepted procedures of cross-examination."

[26]

Some of the appellants' complaints arise out of the "rolled up" order made by Murray J, from which there has been no appeal and which, it seems, was made with the acquiescence of the parties. On objection being raised, her Honour was unable to examine any of the documents sought to be produced for inspection "to determine whether they appear relevant in the sense that they relate to the subject matter of the proceedings" or otherwise to test the degree of their relevance (see Waind's case (supra)). That placed her at a serious disadvantage. It appears from her Honour's reasons for judgment and from the manner in which the appeal was argued before us, that no objection was or is taken to her Honour's determination of relevance by reference to the documents annexed to the affidavits of Mr Andrusiak, and to the appellants' affidavit evidence. As her Honour said, "to determine these questions it is necessary to refer to the subpoenas proposed to be issued, to portions of the contract between the Woodside parties [the sellers] and Western Power, to the price redetermination notice [the Prevailing Contract Price Notice], and to the applicant's contentions in this arbitration." That finding by her is not challenged. The questions to which she referred were the jurisdiction to issue subpoenas, the relevance of the documents, issues of oppression, whether in the face of objection and the existence of oppression the documents are sufficiently relevant, and questions of confidentiality. She went on to make it clear that she had regard to the affidavits of the appellants in which "they outlined their reasons for believing that documents which they sought to protect were not relevant to those issues" and testified "as to the factual circumstances in relation to which those issues are to be understood, that is, as to the state of the market for coal and gas generally, and as to the manner in which the companies produce and distribute coal and gas". All that, it seems, provided the basis on which the parties accepted that her Honour should determine relevance. She did so. In the exercise of her discretion and, it would seem, generally on the basis of the affidavit evidence, she declined, for the reasons given by her, to order the production of documents relating to certain types of transactions as not being "sufficiently" relevant and set out her reasons for finding the remaining documents, in the face of the objections raised in those affidavits or by way of submissions, to be sufficiently relevant. She determined, however, that the proposed subpoenas should be further amended and she so ordered.

Parties

Applicant/Plaintiff:

# Apache Northwest Pty Ltd & Ors

Respondent/Defendant:

Western Power Corporation & Anor \[1998\] WASCA 127

Legislation Cited (9)

Arbitration Act 1985(NT)

Act 1891(SA)

Execution of Process Act 1901(Cth)

Act 1902(NSW)

Arbitration Act 1896(SA)

Corporations (Transitional and Consequential Provisions) Act 1994

Corporation Act 1994

Court Act 1935

Arbitration Act 1986

Cases Cited (32)

Apache Northwest Pty Ltd & Ors v Western Power Corporation & Anor [1998] WASCA 127 (13 May 1998)

Hammond v Wolt [1975] VicRp 10; [1975] VR 108

Arenson v Casson Beckman Rutley & Co [1977] AC 405

BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VicRp 72; [1985] VR 756

Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Waterside Workers Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434

As Brennan J (as he then was) observed in The Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49, at 83:

In that case, the principal proceedings were in the court which heard the objection. Nevertheless, it would seem that there is a great deal to be said in favour of the view that the order below was an interlocutory order and that leave to appeal was required - see Senior v Holdsworth [1976] QB 23. In view of the fact that this was clearly a case in which, if it were necessary, leave would be granted, it was accepted that it would be desirable, by reason of time constraints, not to devote time to the resolution of this matter. Accordingly, to the extent that leave to appeal is necessary in this case, we would grant leave.

The appellants' argument in relation to grounds 1 and 2 of the appeal, in our view, is based upon a strict interpretation of the definition in the Act of "arbitration agreement", an interpretation which is not warranted. In PMT Partners Pty Limited (in liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, the High Court was concerned with the definition of "arbitration agreement" in s4 of the Commercial Arbitration Act 1985 (NT), which is relevantly in the same terms as our own s4. In particular, it was concerned with whether the definition encompassed an agreement by which the parties were bound to have their dispute arbitrated if an election was made, or some event occurred, or some condition was satisfied, even if only one party had the right to elect or was in a position to control the event or satisfy the condition

"We have expressed our view as to the relevant scope and purpose of the Act as it applies to the contract. The statute advances the object of non-curial resolution of disputes. Subject to any special considerations attending the exercise of the judicial power of the Commonwealth (which do not arise here), the nub of the matter was expressed by Windeyer J in Felton v Mulligan. His Honour said [(1971) [1971] HCA 39; 124 CLR 367 at 385]:

In the present case, the agreement allows a period of 90 days within which agreement is to be reached, and, at the expiration of that period, it makes provision for the appointment of an arbitrator by the court under s10 of the Act on the application of "any party to the dispute". It later refers to expediting the settlement of "any dispute". In fact, of course, the parties in this case have exchanged notices, one of which claims that the price is too high and the other of which claims that the price is too low. Neither claim has been accepted. There was unquestionably, in our view, a dispute between the parties, and subject to our conclusion on the following issue, the contract contained an agreement to refer that dispute to arbitration. The parties would no doubt be extremely surprised if the contrary view were to be taken. See also the reasoning of Debelle J in Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38, at 44-46, with which we respectfully agree, by which he concluded that there existed a dispute in that case.

In Russell on Arbitration, 21st edn at 14, the learned authors noted that the subject of arbitrability has not come up directly for decision by the English Courts. Paradoxically, they wrote, the reason may lie in the huge range of different disputes that are referred to arbitration in England and the procedure adopted to determine them, which inhibit any attempt to limit arbitrability, at least in the commercial field - and see also Mustill and Boyd (op cit) at 39. The generally accepted approach is that followed by Debelle J in Santos Ltd v Pipelines Authority of South Australia (supra) and by Wheeler J at first instance, namely, to list the factors which are material to the question of whether a particular process qualifies as an arbitration, sometimes consisting of two parts, those which are necessary, although not in themselves sufficient, and those which are relevant to the question, although not conclusive upon it - see Mustill and Boyd (op cit) at 41-50, Jacobs, Commercial Arbitration Law and Practice at 3601-3614, and see also Ajzner v Cartonlux Pty Ltd [1972] VicRp 107; [1972] VR 919, at 928-930, and Hammond v Wolt [1975] VicRp 10; [1975] VR 108, at 112-115.

".... At the present day, in cases where the parties have agreed on an arbitration or valuation clause in wide enough terms, the Courts accord full weight to their manifest intention to create continuing legal relations. Arguments invoking alleged uncertainty, or alleged inadequacy in the machinery available to the Courts for making contractual rights effective, exert minimal attraction. Sudbrook [Sudbrook Trading Estate Ltd v Eggleton [1983] AC 444] is now the leading English case in the field. The same tendency has been apparent elsewhere in the Commonwealth, as illustrated by Calvan Consolidated Oil and Gas Co Ltd v Manning (1959) SCR 253; Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495; and Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 56 ALJR 825.

(1995) 183 CLR 10

(1992) 7 WAR 549

(1988) 62 ALJR 389

(1989) 88 ALR 90

(1979) 142 CLR 531

(1918) 25 CLR 434

(1982) 150 CLR 49

(1995) 184 CLR 301

(1996) 66 SASR 38

(1983) 34 SASR 215

(1982) 56 ALJR 825

(1991) 23 NSWLR 545

(1989) 83 ALR 577

(1989) 51 SASR 447

(1981) 148 CLR 170

(1978) 18 ALR 555

(1989) 85 ALR 1

(1987) 162 CLR 612

Apache Northwest Pty Ltd & Ors v Western Power Corporation & Anor [1998] WASCA 127

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (32)

Apache Northwest Pty Ltd & Ors v Western Power Corporation & Anor [1998] WASCA 127 (13 May 1998)