Alstom Power Limited v Eraring Energy [2004] FCA 706

FEDERAL COURT OF AUSTRALIA

Alstom Power Limited v Eraring Energy [2004] FCA 706

PRACTICE AND PROCEDURE - Pre-action discovery - Order 15A Rule 6 - Trade Practices Act - Commercial arbitration - Whether appropriate to order pre-action discovery when relevant dispute under the Trade Practices Act could be pursued in commercial arbitration Trade Practices Act 1974 (Cth) Commercial Arbitration Act 1984 (NSW) Federal Court Rules Hodder & Associates v National Mutual Trustees Ltd [1999] FCA 708 C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 CGU Insurance Ltd v Malaysia International Shipping Corporation Berhad (2001) 197 ALR 279 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) & Anor (1998) 90 FCR 1 IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 193 Recyclers of Australia Pty Ltd & Anor v Hettinga Equipment Inc & Anor (2000) 100 FCR 420 Timic v Hammock [2001] FCA 74 Smithkline Beecham P/c v Alphapharm Pty Ltd [2001] FCA 271

ALSTOM POWER LIMITED v ERARING ENERGY AND PACIFIC POWER (SUBSIDIARY No 1) PTY LTD S 836 0f 2003 SELWAY J 4 JUNE 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 836 OF 2003

BETWEEN: ALSTOM POWER LIMITED

APPLICANT

AND: ERARING ENERGY

FIRST RESPONDENT

PACIFIC POWER (SUBSIDIARY No 1) PTY LTD

SECOND RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 4 JUNE 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1 Save for any documents that have already been discovered by the first respondent to the applicant in the contractual arbitration between them, pursuant to O 15A r 6 of the Federal Court Rules the first respondent shall within 2 months of today's date discover the following documents to the applicant on oath: (a) all documents relating to the financing of the project to refurbish and upgrade the Burrinjuck Power Station ('the project') comprising financial models, budgets, feasibility studies, contingency allowances and costings including, loan applications, funding applications, recommendations and submissions to the Treasurer of New South Wales, or such other entity responsible for the financial aspects of the project; (b) all documents comprising any financial or policy analysis of the documents referred to in 1(a); (c) all anterior documents identifying the need for performing additional works and/or recommending the making of the decision to perform the additional works; (d) all documents relating to any consideration of the costs that might be incurred by the performance of the additional works comprising, memoranda, financial models, budgets, recommendations and submissions; and (e) all documents relating to the additional costs incurred or being incurred by the first applicant as a result of the additional works and/or of any delays, which documents shall include all documents relating to the decision by the respondents or others to reject the claim by the applicant for such additional costs.