Case: Esso Australian Resources v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: cited
applicant replied by letter dated 27 April 2004, relevantly, in the following terms: Paragraph number 3 of your letter [of 21 April 2004] fails to answer the query raised in our letter dated 19 April 2004. Our letter asked you to clarify, as a matter of urgency, whether your client regards [the applicant] as being subject to the obligation at law not to use any documents which your client discovers in the arbitration for any other purpose. Please provide us with your response to that query as soon as possible. The implied undertaking not to use documents which a party has discovered for a collateral or improper purpose applies to documents discovered in an arbitration ( Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 128 ALR 391). The undertaking extends to the use of the documents in other proceedings. [The applicant] is subject to that implied undertaking unless your client provides it with clear and unequivocal consent to its waiver. Please let us know, as a matter of urgency, whether your client will provide us with that consent. ... You appear to be contending that your client is under no obligation to comply with [the applicant's] request for production of documents because of the arbitration. We dispute that. Even if that contention is correct, we have asked you to clarify whether all the documents which [the applicant] seeks in this application have been discovered in the arbitration, and to identify those documents. You should provide us with a response to that query. By letter dated 27 April 2004, the first respondent relevantly replied: Our client referred the [TP Act] dispute to arbitration on 13 March 2003, and offered to agree the appointment of the arbitrator in the present arbitration between the parties, Mr Arbitrator Peck. If and when your client attends to this aspect of the matter, our client will consider whether the discovery already given is sufficient, and, if appropriate, will make further discovery. The first respondent further replied on 30 April 2004 in the following terms: As we have previously indicated to you, [the applicant's application for pre-action discovery] is unnecessary for the following reasons: (a) the arbitration agreement between the parties is sufficiently broad to incorporate the potential [TP Act] claims the subject of the [the applicant's] application (the Alleged Claims). As a result, on 13 March 2003, [the first respondent] offered to refer to the current arbitration not only the dispute regarding early discovery but also the dispute regarding your client's [TP Act] allegations. These are disputes arising out of or in connection with the Contract. In fact, some of the matters alleged by [the applicant] in support of potential [TP Act] claims are already pleaded in [the applicant's] points of claim; (b) general discovery has been given to [the applicant] in the arbitration. It is for [the applicant] to decide whether or not the documents which [the applicant] seeks in the present application have been discovered by [the first respondent] in the arbitration ... (c) [The applicant] is likely to have sufficient documentation available to it to enable it to identify whether [the applicant] may have potential claims under the [TP Act] against [the first respondent or the third party]; however, [the applicant] has not (and there is no evidence that it has) made reasonable attempts to review these documents; (d) "documents discovered in an arbitration" can obviously be used by [the applicant] in the arbitration; and (e) [The applicant's] concern about using arbitration documents in other proceedings is avoided if and when [the applicant] agrees to the appointment of Mr Arbitrator Peck to arbitrate the Alleged Claims. The first respondent's position is that there is no all encompassing implied undertaking of confidentiality in arbitration agreements: Esso Australian Resources v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The first respondent submits that the documents relating to the arbitration are not of their nature confidential, and in the absence of any general confidentiality attaching to the arbitration, that this Court is entitled to refer to them in assessing the costs of the application. In the alternative, the first respondent submits that if the relevant documents were covered by an implied confidentiality undertaking, that the first respondent could disclose the documents in order to protect its legitimate interests in obtaining an order for costs in these proceedings. I have already made clear my findings that the fact that the applicant brought claims under the TP Act within the arbitration is irrelevant in assessing costs. I have not relied on the documents related to the arbitration in assessing the costs of the pre-action discovery application in this Court. However, as noted in the first respondent's submissions, the Points of Claim were annexed to an affidavit read and relied upon at the hearing of this application in open Court, and no objection was taken to that course of action at that time. The Points of Claim have been on the public record since 2004. There would be little utility in making an order for confidentiality at this late stage, and such an order would run counter to the principles of open justice. More importantly, there is no developed material upon which, in respect of that affidavit, s 50 of the Federal Court of Australia Act 1976 (Cth) could be enlivened. I am not satisfied that it is necessary to prevent prejudice to the administration of justice in the circumstances to make the order sought. Indeed, it is necessary to note the outcome of the arbitrator's award on the claim under the TP Act as it is a matter relevant to the ruling on costs which I have made. Without noting that outcome, the reasons for the ruling would not be transparent and indeed would not make sense. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 23 June 2009 Counsel for the Applicant: A Rosser Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for the Respondents: I Nosworthy Solicitor for the Respondents: Nosworthy Partners as agents for Henry Davis York Date of Submissions: 14 May 2009 Date of Judgment: 23 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/681.html