Qantas Airways Limited v Rolls-Royce PLC [2010] FCA 1481

FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Rolls-Royce PLC[2010] FCA 1481 Citation: Qantas Airways Limited v Rolls-Royce PLC [2010] FCA 1481

Parties: QANTAS AIRWAYS LIMITED ABN 16 009 661 901 v ROLLS-ROYCE PLC

File number: NSD 1681 of 2010

Judge: RARES J

Date of judgment: 16 December 2010

Date of hearing: 16 December 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 25

Counsel for the Applicant: A Bell SC and M Izzo

Solicitor for the Applicant: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1681 of 2010

BETWEEN: QANTAS AIRWAYS LIMITED ABN 16 009 661 901

Applicant

AND: ROLLS-ROYCE PLC

Respondent

JUDGE: RARES J DATE OF ORDER: 16 DECEMBER 2010 WHERE MADE: SYDNEY

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), the following parts of exhibit BRN1 to the affidavit of Beverley Newbold affirmed on 2 December 2010 be confidential, and access thereto be restricted to the parties and their legal advisors: (a) as regards tab 13 (Aircraft General Terms Agreement), in clause 5.1 (the name and account details of the Seller's Account), clauses 5.3.2, 5.3.3 and 5.3.5 (Payments – Predelivery Payments), 7.3.1 (Certification – Costs of SCN for Certification), 9.3.2 (Delivery – Fly Away), 10 (Excusable Delay), 11 (Non-Excusable Delay), 12 (Warranties and Service Life Policy), 14.4.1 (Technical Data and Documentation – Revision Service – General), 19 (Indemnification and Insurance), 20.3, the words between "within" and "after" in line 4 of 20.4, 20.5.4 (Termination), and 22.4 (Miscellaneous Provisions – Law and Jurisdiction); (b) as regards tab 14 (Purchase Agreement), clauses 3.1.1 (Basic Prices – A380-800 Airframe Basic Price), 3.2.1 and 3.2.2 (Basic Prices), and in 5.1 (Predelivery Payments – Seller's Account) the name and details of the seller's account; (c) as regards tab 15 (Letter Agreement No 1), clauses 2.1 and 2.2 (Guaranteed Performance), 3.1.1 to 3.1.7, 3.2 and 3.3 (Mission Guarantees), 4 (Usable Load), 5 (Noise and Emissions), 7 (Guarantee Compliance), 8 (Adjustment of Guarantees), 10 (Undertaking Remedies), 11 (Cruise Specific Range at Delivery) and the Schedule on page 13 of Letter Agreement No. 1; (d) as regards tab 16 (Letter Agreement No 11), the first two paragraphs at the top of page 2 of Letter Agreement No. 11, clauses 1 (Noise), all of that part of clause 2 which appears on 479 of Exhibit BRN 1, with the exception of the final paragraph (Payload Commitment), 3 (Airport Accessibility), 4 (Viability), 5 (Termination and Remedies), and 7 (Component Repairability); 2. Pursuant to s 50 of the Federal Court of Australia Act 1976, the following parts of exhibit BRN1 to the affidavit of Beverley Newbold affirmed on 2 December 2010 be confidential, and access thereto be restricted to the parties and their legal advisors: (a) as regards tab 17 (Spare Engine Purchase Contract), clauses 2.2 (Sale of Engines), 3.2 to 3.7 (Specification), 7 (Interface Services), 11.1, 11.2 and in 11.6 (Payment and Invoice) the name and details of the bank account, 12.1 to 12.4 (Warranties), 13 (Insurance), 14 (Indemnity), 15 (Customer Support), 16 (Delay in Delivery Date), 18.4 and 18.5 (Termination), the words between "for" and the semi-column in 33.1(b) (Priority of Documents), Exhibit B.1, B.2 and B.3 (Engines Delivery, Prices and Escalation) and Exhibit C (Warranties); (b) as regards tab 18 (Side Agreement Number 1 to the Spare Engine Purchase Contract), clauses 1.5 (Introduction), 3 (Critical Issues and Milestones), 4 (Noise Restrictions), 5 (Payload), 6 (Airport Accessibility), 7 (A380 Aircraft Viability), 8 (Qantas Right to Terminate), 9 (Termination), and 10 (Remedies); (c) as regards tab 19 (Fleet Support Agreement), the definitions 'Anniversary Date(s)', 'Failure' and 'Term of Guarantee' in clause 1 (Definitions), clauses 2 (Scope of Agreement), 3 (Governing Conditions and Administration), 4 (Grant of Warranties and Limitation of Liability), the words between "effective" and "after" in the second line of 5.2, the words between "exceeding" and "following" in the second line of 5.4, and 5.4.1 to 5.4.5 (Events of Default and Termination), Exhibit A (Aircraft Delivery Schedule), Exhibit B (Operating Assumptions) and Exhibit C (various product guarantees); (d) as regards tab 20 (Fleet Incentives Agreement), the words in brackets after "Spare Engine Purchase Contract" in the third line of recital B, clauses 2 (Financial Assistance), 3 (Support), 4 (Engines up to 76,000 lbs take-off thrust rating), 5 (Flight certification engines), 6.1.1(a) and 6.1.1(b) (Termination), and Exhibit A (Aircraft Delivery Schedule); (e) as regards pages 587 to 590 of Exhibit BRN, those provisions identified in sub-paragraph (f) below; (f) as regards tab 21 (Side Agreement Number 1 in respect of the Fleet Incentives Agreement), the words in brackets at the conclusion of clause 1.2(iii), the words between "a" and "comprehensive" in 1.3 (Introduction), and the words between "for" and "(or…" in the second line of 4.1, and 4.2 to 4.10 (Engine Maintenance Agreement); (g) as regards tab 22 (Engine Maintenance Agreement), all words after "means" in the definition of 'Lease Agreement', the words between "time" in the first line and "thereafter" in the second line of the definition of 'Period of Cover', all words between "which" and the commencement of the last paragraph of the definition of 'Qualified Event', and all words after "means" in the definition of 'Total Reconciliation Cost' in the Definitions and Interpretation clause, 3 (Payment Terms), 4 (Warranties and Guarantees), 5 (Obligations of Qantas), 8 (Insurance), 10 (Delay), 11.2 to 11.7 (Termination), 14.3 (Liability), 17.2, 17.3 and 17.4 (Effective Date, Expiration and Extension), Schedule 1 (Covered Services), Schedule 2 (Charges), Schedule 3 (Line Maintenance Burden Guarantee), Schedule 4 (Delivery Schedule), Schedule 7 and Schedule 9 (Qualified Equipment); (h) as regards tab 25 (Side Agreement Number 1 to Fleet Support Agreement), clauses 4 (Operating Assumptions) and Exhibit A (Aircraft (Delivery Schedule); (i) as regards tab 26 (Side Agreement Number 2 to Fleet Incentive Agreement), clauses 3 (Initial Provisioning Spare Parts Credit), 4 (Tooling Credit), 5 (Escalation of Financial Assistance Credits), 6 (Support), and Exhibit A (Aircraft Delivery Schedule); and (j) as regards tab 27 (Side Agreement Number 2 to the Spare Engine Purchase Contract), clauses 5 (Number of Spare Engines), 7 (Payment and Invoice), Exhibit A (Aircraft Delivery Schedule), Exhibit B.1 (Engines Delivery, Prices and Escalation – Engines and Delivery Schedule) and Exhibit B.2 (Engines Delivery, Prices and Escalation – Base Price Escalation Formula). 3. The Applicant provide a copy of these orders to a representative of Airbus S.A.S (Airbus) by electronic means (facsimile and/or email) prior to 5 pm on Friday, 17 December 2010. 4. The orders in paragraph 1 above be stayed until 12 noon on Thursday, 23 December 2010. 5. The orders in paragraph 1 take effect from 12 noon on Thursday, 23 December 2010 unless, before that time, Airbus files a notice of motion seeking further or varied orders under s 50 of the Federal Court of Australia Act 1976. 6. Airbus be granted leave to file any such motion. 7. The proceeding be stood over until 9.30 am on 2 February 2011 for further directions. 8. There be liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.