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Dispute resolution

​Update on subpoenas used to gain access to confidential documents

AGL Wholesale Gas Ltd & anor v Origin Energy Ltd & ors [2008] QCA 366

In our October 2008 update we covered the recent decision of Justice Dutney in the Queensland Supreme Court regarding applications to set aside subpoenas aimed at third parties’ confidential documents in relation to a gas price arbitration. The documents included board reports and internal management papers.

AGL appealed the decision of Justice Dutney. BG and QGC resisted disclosure of the documents on the basis that the arbitrators’ task was to determine a ‘market price’ for gas; and that price could only be determined by reference to information reasonably available in the market, not confidential information. A number of English authorities were cited in support of this argument. An admitted exception to this proposition was evidence of actual sales of gas in the market place.

The Court of Appeal held the confidential information concerned projects that were at early stages of development. Any assessment by the arbitrators would necessarily involve a substantial degree of speculation about the degree of likelihood of the projects’ proceedings, the likely prices and impacts of the projects. These issues were peripheral. Parties need to focus on the true issues in the litigation and not be diverted by matters of limited probative relevance. The confidential and commercially sensitive nature of the documents were also a factor in the Court’s exercise of its discretion in whether to allow the subpoenas to stand.

The Court of Appeal rejected AGL’s appeal, on the basis that it would be oppressive to require production. The Court took a narrower view of the previously accepted low threshold of “apparent relevance” to issue subpoenas.

Regrettably, the Court chose not to determine the issue of whether confidential information could be considered in a valuation exercise to determine ‘market price’.

If you are issued with a subpoena in an arbitration that covers commercially sensitive material, it may be possible to oppose the subpoena if the relevance of the documents to the true issues is peripheral. Should you wish to serve a subpoena aimed at confidential documents, you should be aware that it may be set aside unless you can demonstrate relevance to the true issues of the matter.
Who does this affect?

Companies whose business operations are involved in the energy and resources sector.

​​What do you need to do?

This publication aims to provide you with an overview of recent legal developments that are relevant to your business. Should you wish to discuss any of the information attached please contact the relevant Partner.



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