Bengalla Mining Co. Pty. Ltd. v. Barclay Mowlem Construction Ltd. [2001] NSWSC 93

Bengalla Mining Co. Pty. Ltd. v. Barclay Mowlem Construction Ltd. [2001] NSWSC 93

The Court, not merely the arbitrator, should deal with the challenge because the subpoenas were orders of the Court. The subpoenas were not an abuse of process merely because they were intended to supplement alleged inadequate discovery, provided they did not require the recipients to judge relevance to the issues and were not oppressive. Applying that test, parts of the Bengalla subpoena were too wide or unclear and should be struck out or narrowed, while the Sedgman subpoena should not be set aside given Sedgman's willingness to comply through an agreed procedure and Bengalla's limited interest.

Jurisdiction
Australia
Judgment Date
28 February 2001
Procedural Posture
Application Concerning Subpoenas to Produce Documents Issued in Connection With an Arbitration / Hearing of Application to Set Aside Subpoenas
Outcome
Application allowed in part; the Bengalla subpoena was narrowed and the Sedgman subpoena was not set aside but compliance by an agreed procedure was treated as sufficient.
Legal Topics
['subpoenas to Produce Documents' 'discovery' 'oppressive Subpoenas' "arbitrator's Powers" 'legal Professional Privilege' 'confidentiality']
['arbitration' 'civil Procedure' 'evidence'] ['subpoenas to Produce Documents' 'discovery' 'oppressive Subpoenas' "arbitrator's Powers" 'legal Professional Privilege' 'confidentiality']

Case Brief

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Procedural Posture

Application Concerning Subpoenas to Produce Documents Issued in Connection With an Arbitration / Hearing of Application to Set Aside Subpoenas

Legal Issues

  1. 1 ['Whether subpoenas issued in connection with an arbitration should be set aside as an impermissible attempt to obtain discovery.' 'Whether the subpoenas were too wide or oppressive.' 'Whether the Court or the arbitrator should determine compliance with subpoenas issued by the Court.' 'Whether Bengalla had a sufficient interest to seek to set aside the subpoena issued to Sedgman.']

Ratio Decidendi

The Court, not merely the arbitrator, should deal with the challenge because the subpoenas were orders of the Court. The subpoenas were not an abuse of process merely because they were intended to supplement alleged inadequate discovery, provided they did not require the recipients to judge relevance to the issues and were not oppressive. Applying that test, parts of the Bengalla subpoena were too wide or unclear and should be struck out or narrowed, while the Sedgman subpoena should not be set aside given Sedgman's willingness to comply through an agreed procedure and Bengalla's limited interest.

Court Disposition

Application allowed in part; the Bengalla subpoena was narrowed and the Sedgman subpoena was not set aside but compliance by an agreed procedure was treated as sufficient.

Orders

  • ['The definition of "documents" in the Bengalla subpoena was to be struck out.' 'The definition of "vendor supplier" in the Bengalla subpoena was to be reduced by striking out the companies identified by Barclay\'s concession and the further ten suppliers in paragraph 12 of the affidavit of Ross Hammond sworn 14th...