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  4. Santos Limited v Fluor Australia Pty Ltd - [2021] QSC 181

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Santos Limited v Fluor Australia Pty Ltd[2021] QSC 181

Santos Limited v Fluor Australia Pty Ltd[2021] QSC 181

SUPREME COURT OF QUEENSLAND

CITATION:

Santos Limited v Fluor Australia Pty Ltd & Anor [2021] QSC 181

PARTIES:

SANTOS LIMITED

ABN 80 007 550 923

(plaintiff)

v

FLUOR AUSTRALIA PTY LTD

ABN 28 004 511 942

(first defendant)

AND

FLUOR CORPORATION

(second defendant)

FILE NO/S:

BS 12939 of 2016

DIVISION:

Trial

PROCEEDING:

Reasons for Judgment

DELIVERED ON:

29 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Bradley J

ORDERS:

  1. 1.Pursuant to rule 505(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld):
    1. (a)
      By 30 July 2021, Santos is to file and serve:
      1. (i)an application substantially in the form of the draft application in pages 1 to 15 of exhibit JNP-1 to the affidavit of Joshua Norman Paffey filed on 22 July 2021; and
      2. (ii)any affidavit on which it intends to rely at a hearing of that application; and
      3. (iii)their written submissions in respect of that application;
    2. (b)
      By 13 August 2021, the Fluor parties are to file and serve:
      1. (i)any affidavit on which they intend to rely at a hearing in respect of the relief sought in paragraph 1 of the application filed on 26 July 2021; and
      2. (ii)written submissions in respect of that relief;
    3. (c)
      By 20 August 2021, the Fluor parties are to file and serve:
      1. (i)any affidavit in response to any affidavit referred to in paragraph (a)(ii) above; and
      2. (ii)any written submissions in reply to the written submissions of the Fluor parties referred to in paragraph (a)(iii) above; and
    4. (d)
      By 27 August 2021, Santos is to file and serve:
      1. (i)any affidavit in response to any affidavit referred to in paragraph (b)(i) above; and
      2. (ii)any written submissions in reply to the written submissions of the Fluor parties referred to in paragraph (b)(ii) above,
    5. 2.The parties’ respective applications referred to in paragraphs (a) and (b) above are listed for hearing together in the Civil List for two days commencing on 2 September 2021 at 10:00 am.
    6. 3.The parties’ costs of the applications filed 22 July 2021 and 26 July 2021, to the date of this order, are their respective costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – MODE OF TRIAL – ASSESSOR, SPECIAL REFEREE ETC – where the parties seek directions for an interlocutory application pursuant to rule 505 of the Uniform Civil Procedure Rules 1999 (Qld) to determine issues that have arisen under the inquiry relating to legal professional privilege

Uniform Civil Procedure Rules 1999 (Qld), r 505

COUNSEL:

P L O'Shea QC, with D S Piggott QC and A C Stumer, for the plaintiff
D A Kelly QC, with S R Eggins, for the defendants

SOLICITORS:

Corrs Chambers Westgarth for the plaintiff
Jones Day for the defendants

  1. [1]
    These reasons explain the directions made on two interlocutory applications filed in this proceeding.  The first was filed on behalf of the plaintiff (Santos) on 22 July 2021. The second was filed on behalf of the defendants (the Fluor parties) on 26 July 2021. 
  1. [2]
    The relevant background to the applications may be briefly summarised. 
    1. (a)
      Santos claims an entitlement to recover significant sums paid to the Fluor parties for work performed under a contract for the construction of facilities in the Surat Basin. 
    2. (b)
      On 15 February 2021, the Court referred certain questions arising in the proceeding to a panel of three referees (the Referral Order).
    3. (c)
      On 3 and 4 June 2021, during an initial hearing before the referees, counsel for the Fluor parties referred to certain documents.  Counsel for Santos objected to the Fluor parties putting the documents to the referees on the ground that they were the subject of a valid claim of legal professional privilege (the Privilege claim).  The chair of the panel directed the parties to approach a Judge of the Court with a view to ruling on the Privilege claim or giving the panel express power to do so.
  2. [3]
    Each of the applications seeks directions pursuant to rule 505 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  One of the directions sought by Santos would require Santos to file and serve an application for a declaration that certain documents are the subject of a valid claim of legal professional privilege.  Amongst the relief sought by the Fluor parties is a direction that the powers conferred on the referees include the power to hear and determine claims in respect of privilege, and a direction that the Court determine the Privilege claim, rather than the referees.
  3. [4]
    On 22 July 2021, Santos filed written submissions about the directions that might be made.  On 26 July 2021, the Fluor parties filed written submissions as to the directions that might be made in respect of their application and written submissions in reply to the written submissions by Santos.
  4. [5]
    The parties have requested that the Court consider and make any directions on the papers, without an oral hearing.  This request is subject to any different view the Court might have to proceeding in that manner.  Having considered the applications and the written submissions, the directions are an appropriate matter for determination on the papers. 
  5. [6]
    The application by Santos seeks directions for an interlocutory hearing to determine whether the Privilege claim is valid.  The Fluor parties’ application requires a determination of whether the powers conferred on the referees by the Referral Order include the power to hear and determine the issues raised by the parties’ respective applications about the Privilege claim, and whether the referees ought to be given express power to rule on the validity of the Privilege claim.  It is convenient to refer to all these issues collectively as the Privilege Issues.  The parties estimate the hearing of their applications on the Privilege Issues will require two days in the Civil List.
  6. [7]
    I am managing the proceeding.  The parties have requested that the Privilege Issues be heard and determined by another member of the Court.  The request is made to avoid a possible consequence for any later hearing on the adoption (or not) of the referees’ report. 
  7. [8]
    I am satisfied that directions should be made for a hearing of the Privilege Issues before a Judge in the Civil List, for the efficient conduct of the reference.  If possible, the directions should provide for the Court to hear and determine the Privilege Issues in advance of the initial eight-week hearing, scheduled to commence before the referees on 25 October 2021.
  8. [9]
    Orders should be made to the following effect:
  1. (1)
    Pursuant to rule 505(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld):
  1. (a)
    By 30 July 2021, Santos is to file and serve:
    1. an application substantially in the form of the draft application in pages 1 to 15 of exhibit JNP-1 to the affidavit of Joshua Norman Paffey filed on 22 July 2021; and
    2. any affidavit on which it intends to rely at a hearing of that application; and
    3. their written submissions in respect of that application;
  2. (b)
    By 13 August 2021, the Fluor parties are to file and serve:
    1. any affidavit on which they intend to rely at a hearing in respect of the relief sought in paragraph 1 of the application filed on 26 July 2021; and
    2. written submissions in respect of that relief;
  3. (c)
    By 20 August 2021, the Fluor parties are to file and serve:
    1. any affidavit in response to any affidavit referred to in paragraph (a)(ii) above; and
    2. any written submissions in reply to the written submissions of the Fluor parties referred to in paragraph (a)(iii) above; and
  4. (d)
    By 27 August 2021, Santos is to file and serve:
    1. any affidavit in response to any affidavit referred to in paragraph (b)(i) above; and
    2. any written submissions in reply to the written submissions of the Fluor parties referred to in paragraph (b)(ii) above,
  1. (2)
    The parties’ respective applications referred to in paragraphs (a) and (b) above are listed for hearing together in the Civil List for two days commencing on 2 September 2021 at 10:00 am.
  1. (3)
    The parties’ costs of the applications filed 22 July 2021 and 26 July 2021, to the date of this order, are their respective costs in the proceeding.
Close

Editorial Notes

  • Published Case Name:

    Santos Limited v Fluor Australia Pty Ltd & Anor

  • Shortened Case Name:

    Santos Limited v Fluor Australia Pty Ltd

  • MNC:

    [2021] QSC 181

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    29 Jul 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Santos Limited v Fluor Australia Pty Ltd (No 2) [2021] QSC 1891 citation
1

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