Esso Australia Resources Ltd v Plowman [1995] HCA 19

High Court of Australia Mason CJ Brennan, Dawson, Toohey and McHugh JJ Esso Australia Resources Ltd v Plowman [1995] HCA 19

ORDER Appeal dismissed with costs, except in so far as the appeal relates to declarations 6c and 6f. Remit the matter to the Supreme Court of Victoria to reformulate declarations 6c and 6f or to make such orders as may be appropriate in the light of the reasons of the majority.

Cur adv vult

The following written judgments were delivered:—

7 April 1995 Mason CJ.

This appeal raises the important question whether an arbitrating party is under an obligation of confidence in relation to documents and information disclosed in, and for the purposes of, a private arbitration. The question, in the context of this case, has its genesis in two agreements for the sale of natural gas from the Bass Strait fields to two public utilities, the Gas and Fuel Corporation of Victoria (GFC) and the State Electricity Commission of Victoria (SEC). The first agreement dated 1 January 1975 was with GFC. It was amended on three occasions, the last occasion being by a deed dated 14 February 1986. The second agreement dated 30 July 1981 was with SEC. It was also amended on three occasions, the last occasion being by deed dated 3 August 1990. The other parties to the agreements, the vendors of the natural gas, are the first and second appellants. By deed dated 1 January 1988, the second appellant assigned its rights and obligations under the second agreement to the third appellant, BHP Petroleum (Bass Strait) Pty Ltd. The three appellants were described as "Esso/BHP" in the courts below.

Each of the sales agreements contained a clause whereby the price payable for the gas sold was to be adjusted by taking into account changes relating to royalties and taxes attributable to the production or supply of gas [1] .