[1994] 1 VR 1
ESSO AUSTRALIA RESOURCES LTD and ORS v PLOWMAN and ORS
SUPREME COURT OF VICTORIA APPEAL DIVISION
BROOKING (1), TADGELL (2) and SMITH (3) JJ
15, 19 to 21 April 1993, 17 May 1993
Arbitration — Contract — Implied terms — Whether implied term that hearing be
in private — Legal incident to particular class of contract — Custom of
country — Broad equitable considerations — Whether implied term that
information disclosed in arbitration is confidential — Difficulty in
formulating general rule and exceptions — Declaration — Whether declaration
appropriate — Declaration in vague or general terms — Declaration based on
hypothetical facts — Stay of proceedings — Commercial Arbitration Act 1984
(No 10167), s14, s26, s47, s53.
.
The appellants (Esso/BHP) entered into agreements for the sale of natural gas
to GFC and SEC After a change in the tax regime Esso/BHP sought price
increases pursuant to CL12.8 of the agreement with GFC and CL19.5 of the
agreement with SEC GFC and SEC refused to pay the increases and the disputes
went to arbitration. The Minister for Manufacturing and Industry Development
(the minister) brought an action seeking declarations that information
disclosed by Esso/BHP to GFC and SEC in the arbitrations is not subject to an
obligation of confidence. Esso/BHP counterclaimed and sought declarations
that there were implied terms of the sales agreements (i) that the
arbitrations would be in private, and (ii) that documents and information
disclosed by Esso/BHP to GFC and SEC for the purposes of the arbitrations
would not be used for a purpose other than the arbitrations. In the same
proceedings GFC and SEC sought declarations similar to those sought by the
minister and an order for specific performance of CL12.8 and CL19.5 of the
sales agreements to compel Esso/BHP to provide details of the price
increases. Esso/BHP applied for a stay of the proceedings under s53 of the
Commercial Arbitration Act 1984 in so far as they sought orders for provision
of details regarding the price increases. The minister also sought
declarations that there were no restrictions on disclosure of information
provided by Esso/ BHP under CL12.8 and CL19.5 of the sales agreements.
Marks J held there were implied terms that the arbitrations would be in
private but did not make declarations to that effect because no issue arose
on the pleadings. He made declarations that there were no express or implied
terms of the sales agreements restricting disclosure by GFC and SEC of
information obtained by reason or in the course of the arbitrations. He also
made the following declaration concerning confidentiality in the GFC
arbitration:
"GFC is not restricted from disclosing information to the minister and third
persons by reason only that
(a) the information was obtained by it from Esso/BHP in the course of or by
reason of arbitration pursuant to the 1975 sales agreement; and
(b) the information has not otherwise been published."
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[1994] 1 VR 1
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