Oswal & Anor v Australia and New Zealand Banking Group & Ors

Supreme Court of Victoria|2016-04-13|Before: SIFRIS J

PRACTICE AND PROCEDURE - Strike out application brought shortly before trial where pleading on foot for years - Applicant did not oppose amendments and was content to deal with case pleaded at trial - No change of circumstances - Application adjourned.

PRACTICE AND PROCEDURE - Discovery - Appeal from Associate Justice - No grounds made out - Documents relevant and discoverable.

1 The Court has before it two applications brought by the Apache defendants.[1] The first is an appeal from the orders made by Daly AsJ on 3 March 2016. These orders were made in proceeding SCI 2011 4653, in which Mrs Oswal is the (only) plaintiff. Consequently, Mrs Oswal is the sole respondent to the appeal from those orders.

2 The second, is the Apache defendants' application, brought by summonses filed 22 January 2016, to strike out or summarily dismiss the claims of misleading or deceptive conduct brought against them by each of Mr and Mrs Oswal. These claims are in substantially identical terms. However, as a preliminary matter, the plaintiffs maintain their position (as previously asserted) that the Court should not entertain these applications by the Apache defendants at this stage of the proceedings and they should, instead, be stood over to the hearing for consideration by the trial judge (Preliminary point).

3 I first heard argument on the Preliminary point and the Appeal. Later in the day, and without ruling on the Preliminary point, I indicated that I would hear argument on the strike out application (paragraph 2 of each summons) but not the summary judgment application (paragraph 1 of each summons). My reasons for that decision are set out below.

The Preliminary point - should the Court hear the strike out application?

4 It is necessary to set out the relevant chronology commencing from the Joinder of the Apache defendants and the claims made against them.

5 The first applications to join the Apache defendants were made in 2013. Those applications were dismissed by me on 22 November 2013.[2]

6 Each of Mr and Mrs Oswal filed an application for leave to appeal from the orders of 22 November 2013.

7 On 5 March 2014, before those applications for leave to appeal were heard, Mr Oswal proposed a further amended version of his statement of claim that addressed the problems identified in the reasons of 22 November 2013.

8 The applications for leave to appeal came on for hearing on 13 March 2014 before Nettle and Whelan JJA. The Court noted that Mr Oswal had a further application to amend on foot and observed that the preferable course (which was accepted by counsel for Mr Oswal) was for that further application to be determined and for any appeal, if necessary, to be brought from that determination. The respondents to the application for leave to appeal agreed not to take a point that Mr Oswal would be shut out from arguing, on such an appeal, any of the grounds that were the subject of the application for leave before Nettle and Whelan JJA. On that basis, the application for leave to appeal from the orders of 22 November 2013 was dismissed.

9 Mr and Mrs Oswal subsequently filed further applications to amend on 31 and 21 March 2014 respectively.

10 Those applications were heard by me on 30 April 2014. The Apache defendants consented to the amendments. Senior counsel for Apache said that the Apache defendants knew the case that was being put against them. While it was said that there were still some deficiencies in the pleading, none of them was an impediment to leave to amend being granted.[3] One may interpolate, it was submitted by the Oswals, that there would have been an impediment to leave being granted if the amendments had failed to plead a cause of action. The Court will not, it was submitted, grant leave to amend if the proposed amendments do not disclose a reasonable cause of action.[4]

11 Orders were made on 30 April 2014, granting leave for the proposed amendments and joining the Apache defendants. Reasons for those orders were subsequently published on 12 May 2014.[5] The revised claim against the Apache defendants was addressed at [27]-[30] of those reasons. Some of the differences between the revised claim and the 2013 proposed pleading were noted at [30]:

The plaintiff submitted that even if, as I found in the first judgment, the representations were no more than contentions of Apache Northwest's opinion, and not actionable conduct under the TPA and ACL, the representation of opinion conveyed that there was a reasonable basis for it. The proposed amendments also include a representation as to its belief in the accuracy of the opinion expressed. The PFASC now alleges that Apache Northwest represented that it had a reasonable basis for its contention, but did not. The plaintiff contended that, amongst other factors, Apache Northwest knew or ought to have been aware of the express terms of the GSA which were inconsistent with the representations made and that there were reserves available to Apache from gas fields other than the Harriet Field.

12 That paragraph identified two of the main differences between the current pleading and the pleading that was rejected in 2013. First, there is a case based on the absence of a reasonable basis for the opinion (if it be an opinion) conveyed by the Apache defendants as to their obligations under the GSA. Secondly, there is a case based on the lack of belief, on the part of the Apache defendants, in the accuracy of the opinion expressed. The submissions of the Apache defendants, it was submitted, ignore those differences.

13 Pursuant to the leave that was granted on 30 April 2014, amended pleadings were filed for each of Mr and Mrs Oswal on 14 May 2014. The pleaded case against the Apache defendants has not changed since the filing of those pleadings.

14 The Apache defendants consent to the amendments was, it was submitted, important. If the Apache defendants had raised then the complaints that they now make about the pleadings, and if that opposition had been successful, then Mr and Mrs Oswal would, it was submitted, have sought leave to appeal in 2014. Instead, the matter went forward for almost 2 years before the Apache defendants filed the present applications. A large amount of work has been done in that time. Mrs Oswal's discovery application against the Apache defendants was filed on 19 June 2015. The proceedings are now fixed for hearing on 30 May 2016. If the Court were to accede to the present applications and strike out the claims against the Apache defendants, then it is likely, it was submitted, that there will be an application for leave to appeal from that decision. The hearing of that application would be likely to jeopardise the trial date. Alternatively (and worse), it would, it was submitted, give rise to the prospect of the trial commencing before the application was determined, so that the parties would not know whether the misleading or deceptive conduct case against the Apache defendants was in or out. Further, and in any event, it was submitted that the period between now and the commencement of the trial on 30 May 2016 is a period of intense preparation for the plaintiffs, which would be interrupted if it were necessary to prepare and run an application for leave to appeal.

15 For these reasons alone, it was submitted that the present applications by the Apache defendants should be dismissed.

16 Further, it is clear, it was submitted, that what the Apache defendants are seeking to do, by their present applications, is to avoid giving discovery in circumstances where it is apparent that there is a tenable case against them.

17 The Apache defendants relied on changed circumstances. They submitted that following a consideration of the evidence (which pursuant to various orders has all effectively been filed) it was clear that the misleading or deceptive conduct claim will not succeed and is not even arguable. They urged the Court to strike out or dismiss a claim that could not possibly succeed.

18 There is considerable force in the submission made on behalf of the Oswals. It is, in my view, in the circumstances, as referred to earlier, not appropriate or desirable for the Court to determine the applications at this late stage, and each application will simply be adjourned sine die.

19 First, the essence of the applications is that the misleading or deceptive conduct claims against the Apache defendants should be struck out in circumstances where:

(a) The Apache defendants consented to the filing of the relevant pleadings in April 2014.

(b) The Court, in granting leave, considered the pleadings and gave reasons for allowing the amendments.[6]

(c) No request for particulars or other attempt to resolve the alleged deficiencies in the pleading was made before the applications were brought.

20 Secondly, the applications have been brought almost 2 years after the relevant pleadings were filed, and shortly before the hearing date. If they were to succeed, it is likely there would be an application for leave to appeal. That would possibly jeopardise the hearing date and certainly interrupt the plaintiffs' preparation.

21 Thirdly, while the Apache defendants referred to deficiencies in the pleadings at the time they consented to their filing (in April 2014), they were content to take up those deficiencies at the final hearing.[7] Nothing has changed, other than the order for discovery. I do not accept that an assessment of the evidence or lack of it relevantly represents changed circumstances in the context of a strike out application. The pleading has remained the same. Further, in no way would I contemplate a summary judgment application at this late stage, in a case of this kind with multiple defendants and numerous complex inter-related issues.

22 Fourthly, it is more probable than not that what has prompted in part the applications, is the order by Daly AsJ that the Apache defendants give discovery of certain documents, including those going to its professed opinion about the likely outcome of the GSA dispute. As pointed out, the Apache defendants do not suggest that it would be burdensome for them to discover those documents.

23 Fifthly, substantive consideration of the applications is likely to require the formation of views on matters that are plainly issues for determination at the trial. It is, for example, likely to require a detailed consideration of the GSA. I am not prepared, nor is it desirable or necessary, to undertake such analysis or consideration at this stage.

24 Having reached this view, and despite hearing argument directed to the adequacy of the pleading, in relation to the misleading or deceptive conduct claim, it is unnecessary to deal with the substance of the applications.

25 Ultimately, it will be a matter for the trial judge. Without in any way wishing to determine the matter or in any way foreclose on the approach that the trial judge may take, there are three matters that I wish to comment on given my extensive knowledge of the case.

26 First, ideally the matter the subject of the summonses - now adjourned sine die - should not have been and should not be re-agitated. They will, that is the substance of the applications, be dealt with in the usual way (submissions and evidence) as part of the trial.

27 Secondly, in my opinion and having heard the argument, the pleading is sufficient as indeed originally acknowledged by the Apache defendants.

28 Thirdly, in my opinion and given the proximity to the trial, it was self-evidently not appropriate to deal with the summary judgment application and I refused to do so.

29 By her summons dated 19 June 2015, Mrs Oswal sought from the Apache defendants[8] discovery of certain categories of documents as specified in Annexure 2 to the summons, pursuant to r 29.08 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules),[9] alternatively r 29.05.2 of the Rules, alternatively s 55 of the Civil Procedure Act 2010 (Vic) (the CPA). By letter dated 18 November 2015, Mrs Oswal proposed reformulated categories of the documents that she sought from the Apache defendants. The documents sought by Mrs Oswal relate to her misleading or deceptive conduct claims against the Apache defendants, found in section [61] of her pleading.

30 On 18 December 2015, Daly AsJ heard Mrs Oswal's discovery application. The Apache defendants opposed the discovery orders sought on several grounds. One of the grounds of opposition was that Mrs Oswal's misleading or deceptive conduct claims were untenable as a matter of law and were, in any event, at the periphery of the case.

31 On 22 December 2015, Daly AsJ ruled that if the Apache defendants intended to maintain their position that the misleading or deceptive conduct claims were untenable, and that they should therefore be relieved of the burden of dealing with them in preparing for trial, they ought make an application to strike out the offending paragraphs, hence the strike-out application.

32 At the case management conference held on 2 February 2016, I adjourned the Apache defendants' strike-out applications sine die, and indicated that Daly AsJ should complete her ruling in respect of the discovery application against the Apache defendants.

33 On 19 February 2016, Daly AsJ heard further argument in respect of the discovery application.

34 For reasons given on 3 March 2016, Daly AsJ ordered that the Apache defendants make discovery of the following categories of documents:

(a) documents relied on by Apache Northwest in forming the opinion referred to in paragraph 61.1(b)(i) of the Apache defendants' defence as to the extent of Apache Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice;

(b) documents relied on by Apache Energy in forming the opinion referred to in paragraph 61.2(a)(i) of the Apache defendants' defence as to:

(i) the extent of Apache Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice; and

(ii) the outcome of the GSA proceeding; and

(c) the '13 dedicated contracts' referred to in Apache's announcement dated 15 June 2005.

35 The Apache defendants appeal from Daly AsJ's orders.

Nature of an appeal from an Associate Justice under r 77.06

36 This appeal is governed by r 77.06 of the Rules. In Wilson v Building Commission of Victoria,[10] John Dixon J said:

An appeal from a decision of an associate judge under r 77.06 is no longer by way of a hearing de novo and ordinarily requires the appellant to show error on the part of the associate judge before appellate power may be exercised. Rule 77.06 characterises an appeal as being by way of re-hearing, such that the appellant must demonstrate a legal, factual or discretionary error by the associate judge.

First ground of appeal: Apache ought to have been relieved from an obligation to provide discovery on the grounds that the misleading or deceptive conduct claims are untenable and/or peripheral

37 The ground must fail. Discovery and the sufficiency thereof must and can only be judged by the issues as determined by the pleadings. The pleadings are the starting point.

38 Of course a document may not - accepting the pleaded basis of the claim - be relevant, or for some other reason, although relevant, may not be discoverable. The document may be so marginal that the expense and inconvenience of conducting searches in order to make discovery may not be justified. However, the starting point is the pleading, and it is not a ground of refusal to attack the adequacy of the pleading.

39 The pleading has survived, and the question is one of relevance and, loosely speaking, proportionality. I turn to the other grounds of appeal.

Second and third grounds of appeal: Apache did not, by its pleading, put into issue the state of mind of Apache Northwest and Apache Energy

40 It was submitted that Daly AsJ approached the application for discovery on the erroneous footing that the Apache defendants had put into issue the relevant Apache defendants' state of mind by paragraphs 61.1(b)(i) and 61.2(a)(i) of their defence to Mrs Oswal's claims.

41 By paragraph 61.1 of the statement of claim, Mrs Oswal alleges, inter alia, that by issuing the Apache Force Majeure Notice, and reiterating its contents in the 22 December 2010 Letter, Apache Northwest represented that it and the other Gas Sellers had no obligation to supply gas to YPF under the GSA from areas outside of the Harriet Field.

42 By way of defence to these allegations, the Apache defendants admit the issuing of the Apache Force Majeure Notice and the 22 December 2010 Letter, and say further that, in response to the allegations in paragraph 61.1, "any representations conveyed by Apache Northwest were not representations of fact and were no more than contentions of Apache Northwest's opinion as to the extent of its obligations under the GSA in the circumstances described in the Apache Force Majeure Notice".[11]

43 In paragraph 61.2 of the statement of claim, Mrs Oswal alleges that in and from July 2011, Apache Energy had discussions with Stage 2 bidders, during which: (a) it asserted that the GSA Proceeding would be resolved in favour of Apache Corp and Apache Northwest; and (b) it did not qualify, withdraw or resile from the representations alleged to have been made by Apache Northwest.

44 In response to the allegations in paragraph 61.2, the Apache defendants say that "any conduct engaged in by Apache Energy did not give rise to representations of fact and were no more than contentions of Apache Energy's opinion as to the extent of Apache Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice and as to the outcome of the GSA proceeding".[12]

45 It was submitted that paragraphs 61.1(b)(i) and 61.2(a)(i) of the Apache Defendants' defence do no more than plead, that if any representations were made, they were no more than expressions of a contention as to Apache Northwest's and Apache Energy's opinion of Apache Northwest's obligations under the GSA and as to the outcome of the GSA proceedings.

46 Consequently these paragraphs (which underpinned Daly AsJ's decision to order further discovery) do not, it was submitted, place Apache's state of mind in issue. This is, it was submitted, consistent with the statements made by me in Oswal v Carson & Ors[13] at [71]-[72], following a consideration of the terms and effect of the same Force Majeure Notice and 22 December 2010 Letter:

By the Notice, Apache Northwest pointed out to its contracting party, YPFPL, what Apache Northwest contended were its obligations under the GSA. It was an opinion that it was entitled to hold and express. This was in November 2006. Litigation followed. Many years later, in December 2010 it maintained its claim as set out in the Notice.

Advising your contractual counterparty of your contention or position in relation to the operation of a contract is not actionable. It misrepresents nothing. The authorities are sufficiently clear. The proposed claim therefore falls at the very first hurdle.

47 Given that the pleadings do not put in issue Apache's state of mind, her Honour, it was submitted, erred in ruling that Apache discover the documents which they actually relied upon to form the opinions said to arise on the pleadings (Ruling (No 4), [11]).

48 Mrs Oswal submitted that her Honour's conclusion that [61] of the Apache defendants' defence puts in issue the existence of the pleaded opinions was, with respect, plainly correct.

49 Paragraph 61.1 of Mrs Oswal's statement of claim pleads that, by, amongst other things, issuing the Apache Force Majeure Notice, Apache Northwest made a number of representations. In response, the Apache defendants plead:

(i) issued the Apache Force Majeure Notice;

(ii) did not withdraw the whole of the Apache Force Majeure Notice; and

(iii) sent the 22 December 2010 Letter;

(i) any representations conveyed by Apache Northwest were not representations of fact and were no more than contentions of Apache Northwest's opinion as to the extent of its obligations under the GSA in the circumstances described in the Apache Force Majeure Notice;

50 On any view of the matter, it is implicit in paragraph 61.1(b)(i) of Apache's defence, it was submitted, that the "contentions" conveyed by, amongst other things, the Apache Force Majeure Notice were contentions that reflected ("of") Apache Northwest's "opinion" as to the extent of its obligations under the GSA. If that were not the case, the paragraph would not have referred to Apache Northwest's "opinion" at all.

51 Indeed, it is evident, it was submitted, that the pleader has gone out of his way to put in issue Apache Northwest's opinion. If all the pleader had wished to convey was that the Apache Force Majeure Notice contained no more than Apache Northwest's contentions (divorced from its actual opinion) as to the extent of its obligations under the GSA, then the paragraph would have said that: "... and were no more than Apache Northwest's contentions as to the extent of its obligations under the GSA ...". The only available conclusion, it was submitted, is that Apache Northwest's opinion (as opposed to, and in addition to, its contentions) was being deliberately pleaded, presumably in reliance on the Global Sportsman/Inn Leisure line of authority, which the Apache defendants had relied on in resisting the 2013 application to amend. In particular, in Inn Leisure v DF McCloy,[14] French J (as his Honour then was) said, at 167:

A representation of law may be made in different ways which send different messages to the recipient. It may do no more than convey what is, on the face of it, the untutored opinion of the representor. As such it would be unlikely, if wrong, to constitute misleading or deceptive conduct. If the represented opinion were not in fact held by the representor, then that would be a misrepresentation of fact and able to be characterised as misleading or deceptive conduct. It is on that basis also that a fraudulent misstatement of law may be actionable. [emphasis added]

52 It is apparent, it was submitted, that the pleader of the Apache defence, wishing to cover all the bases, included the positive assertion as to Apache Northwest's opinion to address the above line of authority.

53 For these reasons, it was submitted that her Honour was correct to conclude that paragraph 61.1(b)(i) of the Apache defence put in issue "Apache Northwest's opinion as to the extent of its obligations under the GSA". The defence did so expressly and deliberately.

54 The same conclusion obtains, it was submitted, in relation to the pleading, in paragraph 61.2(a)(i) of the defence, of "Apache Energy's opinion as to the extent of Apache Northwest's obligations under the GSA." Her Honour was correct, it was submitted, to conclude that Apache Energy's opinion was being put in issue. If anything, the conclusion applies, it was submitted, with greater force in relation to paragraph 61.2(a)(i), given the terms of [61.2] of the statement of claim, and especially [61.2(b)], to which it responds.

55 In my opinion the grounds fail. There is considerable force in the submission made by Mrs Oswal. The effect of the amendments to that part of the claim dealing with misleading or deceptive conduct was to plead that the Apache defendants did not have a reasonable basis for the opinion conveyed by the Force Majeure Notice and the 22 December 2010 notice. Whether they had a reasonable basis is now clearly an issue in the case. The misleading or deceptive conduct potentially arises out of the fact that contrary to the opinion (which they confidently and unequivocally asserted and pleaded they held) no such belief was held, or there was no reasonable basis for the holding of such belief. These matters clearly arise on the pleadings and are not untenable at law.[15]

56 The documents are sufficiently relevant and should be produced. There is no error in the decision of the learned Associate Justice. Further there is no argument that they are unable to be produced or that there is any difficulty in their production.

Fourth and fifth grounds of appeal: the '13 dedicated contracts' are not relevant to any pleaded issue

57 These grounds relate to an announcement made by Apache on 15 June 2005.

58 Associate Justice Daly ordered discovery of '13 dedicated contracts' referred to in Apache's announcement on the footing that the Apache defendants had put in issue "their opinion as to their rights to serve the Force Majeure Notice... by reason of their defences to Mrs Oswal's claims."[16] It is not clear, it was submitted, what her Honour intended by the italicised words. Apache's defence says nothing regarding any opinion held by Apache as to their rights to serve the Apache Force Majeure Notice. Her Honour therefore erred, it was submitted, in finding that the Apache defendants had put in issue their rights to serve the Force Majeure Notice.

59 If, however, her Honour's statement was intended merely to refer back to the opinions said to have been put in issue by paragraphs 61.1(b)(i) and 61.2(a)(i) of the defence, then the Apache defendants repeated their submissions directed to the second and third grounds of appeal.

60 Daly AsJ further erred, it was submitted, in failing to disclose any proper basis or reasons for her conclusion that the '13 dedicated contracts' were relevant to any issue as to Apache's opinion as to their rights to serve the Apache Force Majeure Notice. Her Honour's reasons do not expose the basis on which she was satisfied that there was a link between the '13 dedicated contracts' and Apache Northwest's conduct in issuing the Apache Force Majeure Notice.

61 Daly AsJ found that any conduct by Apache within a reasonable period of time before and after the formation of that opinion may be directly relevant to the reasonableness and/or bona fides of that opinion. Her Honour's language is, it was submitted, couched in speculative terms. This is not, it was submitted, a firm foundation for the making of an order for particular discovery.

62 There are, it was submitted, some important matters of context that must be borne in mind. The GSA, between YPF as buyer and the Gas Sellers as sellers, was entered into on 17 December 2001,[17] and varied on 13 December 2002.[18] The announcement about gas from the Rose Field being sold into 13 dedicated contracts was made in June 2005, some three and a half years after the GSA was entered into. The impugned representations, the subject of the section 61 claims, arise out of the issuing of the Apache Force Majeure Notice on 23 November 2006, almost one and a half years after the announcement about the Rose Field. The GSA proceeding was commenced in July 2009 and led to a three day hearing in September 2011.

63 It is also important, it was submitted, to bear firmly in mind what is not in issue. Issues that do not arise on the pleadings, it was submitted, include the following:

(a) whether or not, by supposedly entering into the 13 dedicated contracts, Apache Northwest compromised its ability to perform its contractual obligations to YPF under the GSA;

(b) Apache Northwest's assessment, at any point in time, of its ability to perform those contractual obligations;

(c) the cause of any anticipated shortfall in gas;

(d) whether supplies of gas to other customers had jeopardised the security of supply of gas under the GSA.

64 It was submitted that there are two propositions in play. The first is that the Gas Sellers had agreed to supply gas reserves from the Harriet gas field to other customers at some point in time prior to 2005. The second is that the GSA was a field-specific gas contract. Even if these two propositions are true, there is no tension between them. They can, and do, sit comfortably together. If the Gas Sellers had committed gas reserves from the Harriet gas field to other customers, that circumstance does not detract from, nor is it inconsistent with, a contention advanced (one and a half years after the announcement) that the GSA was a field-specific gas contract. In the GSA proceeding, the parties to the GSA (including the other Gas Sellers, Tap and Kufpec) litigated fully the consequences of a shortfall of gas in adversarial proceedings in which each side was represented by highly competent counsel. Following a three day hearing, the matter was settled by the parties to the GSA. The discovery application by Mrs Oswal is, it was submitted, a fishing expedition in support of an attempt to relitigate the issues that were already ventilated in open court in the GSA proceedings.

65 Mrs Oswal submitted that there was no error in the decision of Daly AsJ on this aspect. The submission is outlined below.

66 The announcement is dated 15 June 2005. By that document, Apache announced the development of its "Rose field", which was "part of the Harriet Joint Venture". The announcement was made after the GSA was entered into in 2001 (and amended in 2002) but before the force majeure notice was issued in 2006.

67 The announcement said that development of the Rose field significantly enhanced the Harriet Joint Venture's gas deliverability. It went on to say that production from the Rose field would be sold into "13 dedicated contracts".

68 Daly AsJ correctly concluded, it was submitted, that documents evidencing the 13 dedicated contracts were relevant.[19] Put shortly, if Apache had truly believed that the GSA was a field depletion contract, which is the opinion Apache says it held (Apache defence, [61.1(b)(i)] and [61.2(a)(i)]), then it is unlikely that Apache would have regarded itself as being at liberty to deplete the field by entering into the 13 dedicated contracts. That was essentially the conclusion her Honour reached.[20] Notwithstanding the professed confusion at [26]-[27] of Apache's appeal submissions, it is clear, it was submitted, that her Honour's reference to the Apache parties having put "their opinion" in issue is a reference to [61.1(b)(i)] and [61.2(a)(i)] of the Apache defence, which her Honour had considered in her ruling.[21]

69 There is, it was submitted, a further reason (not raised below) why the 13 contracts are relevant and should be discovered. It is because the contracts are relevant to the cross-claim brought by Apache. That cross-claim alleges, in essence, that, but for Mr Oswal's allegedly wrongful conduct, Apache would never have entered into the GSA with Burrup Fertilisers. The cross-claim claims the revenue that the relevant Apache entity lost by virtue of selling gas at the price that applied under the GSA, rather than at the higher price at which that company would have been able to sell the gas but for the GSA. The 13 contracts are evidence, it was submitted, going to the assessment of that higher price. They are real world evidence by which the plaintiffs should be able to test the opinions as to price contained in the expert report of Mr Houston recently filed by Apache.

70 In my opinion, the 13 contracts clearly relate to the critical issue in the misleading or deceptive conduct case, namely the belief of the Apache defendants at the relevant time and the reasonableness thereof. Clearly the announcement is relevant. Whether the 13 contracts add anything remains to be seen. Given the context and substance of the announcement and its proximity to the Force Majeure Notice, the 13 contracts cannot on any view be considered irrelevant.

71 Consequently, in my opinion, the documents are sufficiently relevant and should be produced. There is no error in the decision of the learned Associate Justice. Further, there is no argument that the Apache defendants are unable to produce the documents, or that there is any difficulty in relation thereto. No other reason for their non-production has been advanced. The grounds fail.

[1] Defined terms bear the same meaning as in previous judgments. (See [2016] VSC 52 and [2016] VSC 119).

[2] Oswal v Carson [2013] VSC 615.

[4] Reference was made to Allstate Life Insurance v ANZ [1995] FCA 1368; (1995) 58 FCR 26 at 36; Research in Motion v Samsung [2009] FCA 320; (2009) 176 FCR 66 at 70 [21].

[5] Oswal v Carson (No. 2) [2014] VSC 209.

[6] Oswal v Carson (No. 2) [2014] VSC 209, [27]-[30].

[8] I have referred to the Apache defendants compendiously. There is no need in the context of these applications to be more specific or identify any particular defendant.

[9] Now the Supreme Court (General Civil Procedure) Rules 2015.

[11] Paragraph 61.1(b)(i) of the defence.

[12] Paragraph 61.2(a)(i) of the defence.

[15] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; (1984) 2 FCR 82 at 88; Inn Leisure v D F McCloy Pty Ltd (1991) 28 FCR 151 at 167.

Court (General Civil Procedure) Rules 2005

Court (General Civil Procedure) Rules 2015

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