Santos Limited v Fluor Australia Pty Ltd (No 2)
[2021] QSC 189
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- Unreported Judgment
- Santos Limited v Fluor Australia Pty Ltd (No 2)[2021] QSC 189
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Santos Limited v Fluor Australia Pty Ltd (No 2)[2021] QSC 189
Santos Limited v Fluor Australia Pty Ltd (No 2)[2021] QSC 189
SUPREME COURT OF QUEENSLAND
CITATION: | Santos Limited v Fluor Australia Pty Ltd & Anor (No 2) [2021] QSC 189 |
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: | Application filed 26 July 2021 |
DELIVERED ON: | 5 August 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Bradley J |
ORDERS: | The Court directs that, within seven days, the parties are to confer and advise the Associate to Bradley J of any agreed course with respect to paragraph 1 of the application filed 26 July 2021. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – MODE OF TRIAL – ASSESSOR, SPECIAL REFEREE ETC – where the parties propose that an application in the proceeding be decided without an oral hearing pursuant to rule 489 of the Uniform Civil Procedure Rules 1999 (Qld) – where the application seeks a direction that the powers conferred on referees appointed by the court include the power to hear and determine claims in respect of privilege – where the parties have agreed that the specific claims of privilege should be heard and decided by a judge – where the relief sought does not appear to have utility – where it does not appear the relief sought would facilitate the just and expeditious resolution of the real issues in the proceeding at a minimum expense – whether the relief sought is inappropriate for decision without an oral hearing Uniform Civil Procedure Rules 1999 (Qld), r 489, r 491, r 503, r 505. Flower v Allen [2014] QSC 300, followed |
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]On 29 July 2021, the Court made an Order providing directions for a hearing of the substantive issues about a claim of legal professional privilege raised and foreshadowed by 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 (the subject application).
- [2]Santos and the Fluor parties filed written submissions. The Fluor parties’ submissions were on an “application for directions regarding privilege claims”. The Santos submissions were “on applications for directions regarding challenges to privilege claims”. The Fluor parties filed submissions in reply with the subject being “application for directions regarding privilege claims”.
- [3]At the request of the parties, the decision on directions was made on 29 July 2021 without an oral hearing. This was a decision under part 6 of chapter 13 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Short reasons[1] were given for the Order made and sent to the parties, in accordance with r 498.
- [4]On 29 and 30 July 2021, Santos and the Fluor parties, respectively, filed applications seeking determinations of Santos’ privilege claim in respect of a number of particular documents.
- [5]On 2 August 2021, by consent, the directions in the 29 July 2021 order were varied. The 2 August 2021 order provides that the more recently file applications are listed for hearing in the Civil List for two days commencing 2 September 2021.
Proposal for part of the substantive relief sought by the Fluor parties to be decided on the papers
- [6]On 30 July 2021, the solicitors for the Fluor parties sent an email to my Associate, with the consent of the solicitors for Santos. The email included the following request:
“The parties apprehend that they may not have clearly communicated their position in relation to paragraph 1 of the Defendants’ application filed 26 July 2021 (CFI no. 273). The parties intended for his Honour to hear and decide that paragraph of the application on the papers and did not intend for that aspect to be referred to another judge. We would be grateful if you could inquire whether his Honour is prepared to hear and decide paragraph 1 of the Defendants’ application filed 26 July 2021 on the papers.”
Decisions without an oral hearing
- [7]Relevantly, r 489 provides:
“489 Proposal for decision without oral hearing
- (1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
- (2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
- (a)
- [8]Rule r 491 provides:
“491 Court may decide that decision without an oral hearing is inappropriate
- (1)The court may decide at any time that an application is inappropriate for decision without an oral hearing.
- (2)If the court decides this before the date set for deciding the application, the court—
- (a)must immediately notify the parties to the application of the decision by telephone or in some other way; and
- (b)may set a date for hearing.”
- [9]
“The fact that there may be no opposition to the making of an order does not qualify an application as one that is appropriate for a decision on the papers without an oral hearing.
… The procedure is particularly suited for commonplace applications, such as an application for substituted service or an application by solicitors seeking leave to withdraw as the solicitors on the record for a party. They are the types of application where the requirements for obtaining the particular order are well settled and the order is usually made on generally standard terms and the party’s solicitor can check that the supporting material and proposed draft order meets the settled requirements.”
- [10]The question before her Honour was the construction of a clause of a will in the circumstances where the strict terms of the condition were unable to be fulfilled after the deceased’s death. As her Honour observed, it must have been apparent to the parties that the question was not straightforward.
The subject of the proposal for a decision on the papers
- [11]The subject of the present proposal for a decision on the papers is paragraph 1 of the subject application. By it, the Fluor defendants apply for an order in these terms:
“Pursuant to rule 505(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), a direction that the powers conferred on the referees pursuant to paragraph 4(c) of the order of Justice Bradley dated 15 February 2021 (the Referral Order) include the power to hear and determine claims in respect of privilege.”
- [12]This requires some unpacking.
- [13]Paragraph 4(c) of the Referral Order is in these terms:
“4. The Referees are required to decide the Questions, and in so doing:
…
- (c)the power under rule 503(1)(a) of the UCPR to conduct the inquiry the way the referees consider appropriate includes the power to hear and decide any applications or matters relating to the pleadings, procedural directions, document management (including disclosure) and any other matter in relation to managing the orderly progression of the inquiry to hearing and decision.”
- [14]The Referral Order was made in a form that the parties agreed was consistent with the reasons published as Santos Limited v Fluor Australia Pty Ltd & Anor [2020] QSC 373. The powers conferred by paragraph 4(c) of the Referral Order are generally in accordance with [93] of those reasons:
“They [the referees] should be authorised to hear and decide any applications or matters relating to the pleadings, procedural directions, document management (including disclosure) and any other matter in relation to managing the orderly progression of the inquiry and decision.”
- [15]Paragraph 4(c) of the Referral Order deals with the power under r 503(1)(a). The whole of r 503 is in these terms:
“503 Conduct of inquiry before referee
- (1)Subject to a direction given under rule 505, the referee—
- (a)may conduct the inquiry in a way the referee considers appropriate; and
- (b)is not bound by the rules of evidence, but may obtain information about a matter in the way the referee considers appropriate; and
- (c)may conduct a hearing for the inquiry; and
- (d)may require evidence to be given orally or in writing; and
- (e)may require evidence to be given on oath; and
- (f)has the same authority as a judge.
- (2)In conducting the inquiry, the referee must observe the rules of natural justice.
- (3)Despite subrule (1)(f), the referee may not deal with a person for contempt.”
- [16]The direction is sought pursuant to r 505. It is in these terms:
“505 Directions
- (1)The court may, on application by the referee or a party or on its own initiative, give directions about—
- (a)the conduct of the inquiry; or
- (b)a matter arising under the inquiry.
- (2)Without limiting subrule (1), directions may be given about—
- (a)disclosure; or
- (b)the issue of subpoenas returnable before the referee.”
The context in which the privilege claim was raised before the referees
- [17]The Fluor parties have exhibited a copy of the transcript of the second day of a hearing before the referees on 4 June 2021. The matter before the referees that day is not entirely clear from the transcript. However, according to the transcript, the chair of the referees described it as “just an opportunity for each party to indicate its case to us, not to take us to evidence.”
- [18]According to the transcript, while making submissions on the Fluor parties’ estoppel claim, Mr L F Kelly QC for the Fluor parties asked the referees to read a particular document. Mr O'Shea QC for Santos objected to the document “being deployed” on the basis that it is “the subject of an extant claim for privilege” that Santos maintained. Mr O'Shea explained to the referees that the basis of the privilege claim was legal professional privilege and that the document was “the gathering of information, in order to obtain legal advice.” Mr O'Shea informed the referees that neither the author nor the recipient of the document was a lawyer, and the document itself did not disclose legal advice. He explained the basis of the privilege claim was that the document “was to gather information, in order for that information to be put before the lawyers”.
Matters going to whether it is appropriate to make a decision on the papers
- [19]There are three matters that inform whether it is appropriate to decide the relief sought in paragraph 1 of the subject application without an oral hearing.
- [20]Firstly, the direction sought is broadly framed. It is not clear that a decision would resolve any specific matter that has arisen before the referees.
- [21]The powers conferred on the referees pursuant to paragraph 4(c) of the Referral Order include the power to hear and determine applications and matters relating to document management, including disclosure. These might include a claim, raised during disclosure, that a document is the subject of a valid claim of legal professional privilege. At the time the issue of privilege arose before the referees, it does not appear the referees were dealing with an application or a matter relating to document management or more specifically to disclosure.
- [22]The referees had made a procedural order dealing with disclosure, amongst other things. The procedural order requires the parties to comply with the Document Management Plan (Referral) dated 11 March 2021. The plan provides for “privilege clawback”. Where it becomes apparent to a receiving party that some of the disclosed material is likely to be privileged, the receiving party must do certain things. When these things are done, the producing party may request the return of the privileged material. The receiving party must return material over which a claim of privilege is maintained “even if it intends to challenge the claim for privilege.” The plan does not otherwise deal with claims of privilege. It does not provide for the determination of a challenge to a privilege claim.
- [23]It does not appear that the parties were or had been involved in any process about “privilege clawback” in respect of the document the subject of Santos’ privilege claim asserted before the referees. It is not known whether any of the other documents, the subject of the applications filed on 29 and 30 July 2021, have been the subject of any “privilege clawback” process.
- [24]At the time the issue of privilege arose, it does not appear the referees had exercised any power to prescribe any process in respect of such a challenge. Nor does it appear the referees had exercised any power to determine any challenge.
- [25]The parties have agreed that Santos’ claim of privilege over a much larger number of documents should be heard and decided by a judge and not by the referees. It is not clear that the documents include the one the subject of the claim raised before the referees on 4 June 2021.
- [26]The referees had the same view about the claim asserted before them, expressed by the chair on 4 June 2021:
“if this claim is to be pressed, it should be pressed before a judge of the court and the judge can decide it and we will act on whatever material we’re allowed to look at, following the judge’s ruling.”
- [27]Against this background, a “direction” in the broad terms sought by the Fluor parties would not appear to have utility. It has no relevance to the proceeding as presently placed. Nor does it appear that a decision on such relief would facilitate the just and expeditious resolution of the real issues in the proceeding at a minimum expense.
- [28]Secondly, the written submissions of the parties reveal there is a controversy about the process by which any decision of the referees on a claim of privilege would be made and could become binding or effective. The dispute concerns whether the referees would provide a report to the court on any claim of privilege and whether the court would decide to adopt the report (or not) before the referees’ decision on the privilege claim would be of any effect. It does not appear that the relief sought in paragraph 1 of the subject application would resolve this controversy.
- [29]Finally, there are procedural issues that are not dealt with in the parties’ written submissions.
- [30]It is not clear that the scope of the directions power conferred by r 505 includes a power to make a direction that construes an earlier order of the court. It is also not clear that a direction under that rule can enlarge the powers of a referee to “conduct the inquiry in a way the referee considers appropriate”, rather than limit or circumscribe the apparent breadth of the power conferred by r 503(1)(a).
- [31]If there was a clear utility to a decision on paragraph 1 of the subject application, so that it might resolve real issues in dispute in the proceeding, these procedural matters might be overcome by the exercise of other powers of the court. That does not appear to be the present position.
- [32]If it were useful to construe the scope of paragraph 4(c) of the Referral Order, it may be appropriate for the decision to be made by a member of the court who did not make the Referral Order.
Conclusion
- [33]At an oral hearing, the parties could make submissions that might explain the breadth of the direction sought and identify its utility. Alternatively, submissions could be made in support of a more narrowly framed direction. No such opportunity arises with a decision on the papers. The steps to be taken for a decision on the papers – to avoid potential interference with the principle of procedural fairness – exclude some of the flexibility possible at an oral hearing. At an oral hearing, the procedural issues could be canvassed and resolved. That cannot occur on the papers.
- [34]More generally, the issues raised by paragraph 1 of the subject application are not without complexity. A judge would be assisted in exploring those issues with the parties’ counsel at a hearing.
- [35]In the circumstances, it is inappropriate to decide without an oral hearing whether to grant the relief sought in paragraph 1 of the subject application.
Proposed order
- [36]I propose to list the subject application for hearing together with the applications filed 29 and 30 July 2021, in which the parties seek a decision on Santos’ specific claims of legal professional privilege, commencing on 2 September 2021.
- [37]If the parties resolve paragraph 1 of the subject application in the meantime, they may jointly inform my associate and the subject application may be resolved by a consent order and removed from the Civil List.
- [38]Before making such an order, I will direct the parties to confer and advise my associate of any other agreed course of action.