PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION
OF DOCUMENTS
– DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS –
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTIONOF DOCUMENTS– DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS –GENERALLY – where the plaintiffsapply for a confidentiality regime to beimposed in relation to disclosure of material said to be confidential –where theplaintiffs apply for limitations on the amount of disclosure and theparticulars required to be provided – where the plaintiffsclaim that thedefendant has sought to obtain confidential information for the purposes offrustrating the development of a mineand rail network – where theplaintiff claims the information has the necessary quality of confidence and wasreceived by thedefendant in breach of an obligation of confidence –whether there are exceptional circumstances justifying additional protectiontoan implied obligation of confidentiality – where any regime imposed must
strike a fair balance between the competing interests
of the parties –
whether disclosure should be limited
Uniform Civil Procedure Rules
1999 (Qld), r 161(2), r 224
Adani Mining Pty Ltd & Anor v Pennings
[2020] QSC 275, cited
Australian Football League & anor v The Age
Co Ltd & ors [2006] VSC 308
(2006) 15 VR 419, cited
Bidvest Australia Ltd and
Auzcorp Pty Ltd (No 2) [2017] WASCA 23, cited
Central Queensland
Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183,
cited
Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260,
considered
Cargill Australia Ltd v Viterra Malt Pty Ltd & Ors (No 23)
(2019) 58 VR 611, considered
Civic Video Pty Ltd v Paterson [2013]
WASCA 107, cited
Ex party Fielder Gillepsie Limited [1984] 2 Qd R 339,
cited
Hearne v Street [2008] HCA 36
(2008) 235 CLR 125, cited
Hogan v
Australian Crime Commission [2010] HCA 21
(2010) 240 CLR 651, cited
ICAP Australia v
Moebes [2010] NSWSC 738, cited
Magellan Petroleum Australia Ltd v
Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37, considered
Mobil Oil
Australia Limited v Guina Developments Pty Ltd [1996] VicRp 54
[1996] 2 VR 34,
considered
Seeker Aircraft America Inc v Seabird Aviation Australia Pty
Ltd [2013] QSC 121, considered
Tri-Star Petroleum Company & Ors v
Australia Pacific LNG Pty Ltd & Ors [2017] QSC 136,
considered
Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd
[2019] QSC 29, cited
Warburton Environment Inc v Vicforests (No 3) [2021] VSC 35,
considered
Judgment (114 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - UNDERTAKINGS AND USE OF DOCUMENTS - GENERALLY - where the plaintiffs apply for a confidentiality regime to be imposed in relation to disclosure of material said to be confidential - where the plaintiffs apply for limitations on the amount of disclosure and the particulars required to be provided - where the plaintiffs claim that the defendant has sought to obtain confidential information for the purposes of frustrating the development of a mine and rail network - where the plaintiff claims the information has the necessary quality of confidence and was received by the defendant in breach of an obligation of confidence - whether there are exceptional circumstances justifying additional protection to an implied obligation of confidentiality - where any regime imposed must strike a fair balance between the competing interests of the parties - whether disclosure should be limited
Seeker Aircraft America Inc v Seabird Aviation Australia Pty Ltd[2013] QSC 121, considered
[17]
Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Ltd & Ors[2017] QSC 136, considered
[18]
Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd[2019] QSC 29, cited
[19]
Warburton Environment Inc v Vicforests (No 3)[2021] VSC 35, considered
[20]
G Gibson QC with D Pyle and L Sheptooha for the Plaintiffs
[21]
[1] Adani Mining Pty Ltd (Adani) is the developer and operator of the Carmichael Mine Project (Carmichael Mine). Carmichael Rail Network Pty Ltd (Carmichael) is the developer of the Carmichael Rail Network (Carmichael Rail). They have instituted proceedings against Mr Pennings on the basis of his role in the Galilee Blockade for, amongst other things, damages for intimidation, conspiracy and for injunctive relief restraining him from using confidential information alleged to have been procured through campaigns instigated by Mr Pennings. The present matter for determination by this Court is whether a confidentiality regime should be imposed in relation to disclosure of material said to be confidential, and further whether limitations should be imposed on the amount of disclosure and particulars required to be provided by Adani and Carmichael.
[22]
[2] The Carmichael Mine and the Carmichael Rail have been opposed by a group of environmental activists, known as the Galilee Blockade. The founder of the Galilee Blockade is said to be Mr Pennings. The fact that he held a strategic role with the Galilee Blockade is not a matter of contention between the parties. Adani and Carmichael complain that since January 2017, the Galilee Blockade has sought to frustrate the development of the Carmichael Mine and the Carmichael Rail. The Galilee Blockade is alleged to have threatened to occupy and obstruct the offices and industrial worksites of existing and proposed contractors of Adani and Carmichael unless they terminate their contracts with Adani and Carmichael or withdraw from negotiations as to proposed contracts in order to cause Adani and Carmichael economic harm. One of the campaigns, the "Dob in campaign", which is alleged to have been spearheaded by Mr Pennings sought to have employees of, or contractors of, or third parties dealing with Adani and Carmichael, provide information, including confidential information, to the Galilee Blockade through various social media platforms. That information is then alleged to have been used to target contractors or those engaged in negotiation for contracts, to deter them from continuing a commercial relationship with Adani or Carmichael.
[23]
[3] Adani and Carmichael have filed a Statement of Claim and Mr Pennings has filed a Notice of Intention to defend.
[4] Adani and Carmichael's case against Mr Pennings was conveniently outlined by Martin J in injunctive proceedings as follows[1]:
[24]
"[13] The applicants' case is that Mr Pennings has caused the Galilee Blockade to:
[25]
(a) demand that the contractors who have agreements with the applicants terminate those agreements or withdraw from negotiations for agreements (the applicants call these the "Targeted Contractors");
[26]
(b) both threaten that members of the Galilee Blockade would occupy and obstruct the offices and worksites of the Targeted Contractors to force them to terminate or withdraw and to carry out those threats (the applicants call this "Direct Action"),
[27]
(c) encourage others to provide information to the Galilee Blockade (confidential or otherwise) concerning the plans and operations of the applicants and the Targeted Contractors for the purpose of conducting Direct Action against them,
[28]
(d) make public the intention to take further action with the aim of preventing the applicants from operating the mine and the rail network."
[29]
[5] Adani and Carmichael contend that Mr Pennings owes a duty of confidence as a result of his actions. In simple terms, the Statement of Claim pleads that:
[30]
(a) Adani and Carmichael each have possession of information of a confidential and valuable nature relating to the construction and operation of the Carmichael Mine and the Carmichael Rail . That confidential information has been identified by the plaintiffs pleading five different categories of confidential information. In relation to the Carmichael Mine it is categorised as being information as to:[2] the Carmichael Mine Scope of Works which pertains to the construction program; the Adani mining relationships which includes information relating to and identifying suppliers and potential suppliers; Carmichael Mine contracts or proposed mine contracts; the Carmichael Mine Contractors and proposed contractors (Adani Confidential Information). Similar categories of confidential information have been identified relating to the Carmichael Rail (Carmichael Confidential Information);
[31]
(b) That the information has the necessary quality of confidence because of the limited access of the information to a small number of employees and contractors who are subject to confidentiality obligations, and because it is not available to the public;
[32]
(c) That the information was received by Mr Pennings or Galilee Blockade in circumstances importing an obligation of confidence; and
[33]
(d) There is an actual or threatened misuse of the information without consent.
[34]
[6] The relief sought includes a permanent injunction restraining Mr Pennings from publishing the Adani Confidential Information and the Carmichael Confidential Information or continuing the campaign seeking such information, and the delivery up of the material.
[7] The alleged loss that is pleaded that will be suffered if Mr Pennings if not restrained is the loss from the Adani Confidential Information and the Carmichael Confidential Information being used to identify targets for Direct Action by environmental activists, which causes losses insofar as construction works are disrupted as well as indirect losses caused by Adani and Carmichael having to pay higher prices to contractors to compensate for their loss and disruption.
[8] The statement of claim also alleges Mr Pennings has induced a breach of contract, has engaged in conduct constituting the tort of intimidation and engaged in a conspiracy to procure or induce persons to disclose confidential information or information to Mr Pennings and unknown co-conspirators and induce targeted contractors to withdraw from negotiations with Adani or Carmichael, or terminate or breach contracts with Adani or Carmichael with the intent to injure Adani and Carmichael respectively and Mr Pennings and the co-conspirators engaged in conduct that was unlawful. Alternatively, it is alleged Mr Pennings and others engaged in a conspiracy to use confidential information or information obtained to facilitate Direct Action, pressure targeted contractors to withdraw from contracts or negotiations and frustrate development of the Carmichael Mine and the Carmichael Rail.
[9] On 11 September 2020, Martin J granted an injunction sought by Adani and Carmichael and made orders requiring the defendant to remove material from websites and social media accounts, and restraining the defendant from various conduct in respect of campaigns conducted via Galilee Blockade websites and from, inter alia, using, copying or communicating Adani Confidential Information and Carmichael Confidential Information or information received in response to the "Dob in Campaigns".
[10] Detailed allegations have been pleaded to substantiate Mr Pennings' involvement in the Direct Action campaign against Targeted Contractors. In particular, it is alleged that he was the spokesperson, or one of the spokespersons, of the Galilee Blockade, that controlled, or was able to control, internet platforms established by the Galilee Blockade and published material on the Galilee Blockade Website and Social Media Accounts. Mr Pennings in his defence has admitted:
[35]
(a) That he was a spokesperson, or one of the spokespersons, of the Galilee Blockade;
[36]
(b) That he was the registrant of the domain "galileeblockade.net" until 27 September 2020, and caused material to be published on the website, and had administrative access to the website up until September 2020 and was able to control information published on the website;
[37]
(c) That he had administrative access to the Galilee Blockade Facebook until early October 2020 and the Galilee Blockade Twitter until early October 2020, as well as to Pennings' private Facebook, Pennings' public Facebook and Pennings' Twitter accounts and that he had administrative access to those social media websites and could control what was posted or published;
[38]
(d) That he published material which was particularised in Schedule 1 and 2 of the defence in column A during the period identified in column B; and
[39]
(e) Some allegations in relation to the occupation of and obstructing access to some industrial worksites which included companies such as Downer, AECOM, Wagners, FKG and Hanwha on dates pleaded in 2017, 2018, 2019 and 2020.
[40]
[11] The defendant has not admitted a number of allegations and has requested particulars of the statement of claim, including allegations concerning confidential information. As a result, particulars were provided by Adani and Carmichael, some of which are the subject of dispute. Some of those particulars are said to be "confidential particulars" and to refer to documents which are claimed to be confidential.
[12] The provision of the particulars which refer to documents said to be confidential has led, at least in part, to the present applications.
[13] Three applications are made by Adani and Carmichael:
[41]
(a) The principal application is to establish a regime of confidentiality with respect to the provision of certain confidential particulars provided in response to paragraphs 1 - 16 and 28 of a request, and disclosure of various classes of documents said to be confidential. That regime, amongst other things, seeks to limit disclosure of the particulars and documents, with respect to Adani Confidential Information and Carmichael Confidential Information, to the defendant's lawyers or any expert, subject to them providing an undertaking;
[42]
(b) The remaining applications seek to limit the provision of particulars to examples provided in what is described as "confidential particulars" pursuant to the Court's power under r 161(2) Uniform Civil Procedure Rules1999 (Qld) (UCPR), and to limit disclosure under r 224 of the UCPR with respect to allegations in the statement of claim relating to the examples of Adani Mining Confidential Information and Carmichael Rail Confidential Information to the examples in response to the request for particulars.
[43]
[14] Mr Pennings cross-applied for further and better particulars in relation to particulars served by Adani and Carmichael on 22 January and 5 February 2021. Adani and Carmichael opposed the hearing of the application on the basis that they were not in a position to deal with the application due to the fact that no letter had been served under r 444 and the lack of prior notice as to detail of the alleged deficiency in the particulars provided. As a result, it was adjourned to a date to be fixed. However, as some of the disputed particulars related to confidential particulars, I had to consider whether it was appropriate to make the orders sought in relation to limiting the particulars and documents that are to be provided by Adani and Carmichael with respect to the Adani Confidential Information and the Carmichael Confidential Information. I reached the view that I could not, and I will continue interim orders in that respect.
[15] Interim orders were made in January and February 2021, by consent, that the confidential particulars and the affidavit of Mr Dow remain confidential. Those orders remain pending the outcome of this application, and were extended to further material filed in relation to this application.
[44]
[16] Where a party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the Court or otherwise, to disclose documents or information, the party receiving the disclosure is subject to a legal obligation not to use it for a purpose unrelated to the conduct of the proceeding in which it was obtained, unless it is received into evidence ("the implied obligation").[3]
[17] Confidentiality alone is not a basis for resisting inspection of documents.[4] The Court may however impose restrictions in relation to dealing with disclosed documents which extends beyond the implied obligation. Cases which require more than the implied obligation are regarded as the exception, and not the rule.[5]
[18] In Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd,[6] White J summarised the relevant principles in the following terms:
[45]
"The principles of discovery relating to restricted disclosure have been enunciated by Templeman L.J. in Church of Scientology v. Department of Health and Social Security[1979] 1 W.L.R. 723 where his Lordship said at p.746:
[46]
"The first principle is that the court shall not order discovery which is not necessary for the fair disposal of the action. It follows that the court has power to impose restrictions which ensure that the ambit of discovery is not wider than is necessary to dispose fairly of the action. The second principle is that the court may act to prevent any possibility of conduct which might constitute contempt of court. The third principle is that the court may act to prevent what may be an abuse of the process of the court. Of course a strong case must be made out for the court to impose restrictions, and the court will endeavour to ensure that the litigants are not prejudiced by the restrictions in the reasonable prosecution of their claim, but in the unusual circumstances of this case I am satisfied that the court ought to intervene and that there is jurisdiction for the court so to do. True, a litigant is entitled to inspect documents disclosed on discovery and to take copies: see Mcivor v. Southern Health and Social Services Board [1978] 1 W.L.R. 757. But if there is a danger that inspection and copying in the manner desired by the litigant may lead to misuse of information, the court in the exercise of its power to prevent a possible contempt of court or in the exercise of its power to prevent an abuse of process and in the exercise of its power to confine discovery to the ambit which alone is necessary for the disposal of the action may dictate the manner in which inspection is carried out, whether by an individual litigant or by a corporate litigant, and may regulate the taking and safeguarding of copies, and may impose limitations on the circulation of copies and information ... It must be able to act similarly to protect the persons or property or even the peace of mind of individuals."
[47]
Earlier in the judgment his Lordship held at p.746:
[48]
" ... The interests of the prudent administration of justice and the interests of the plaintiffs themselves require that reasonable precautions be taken to restrict the circulation of information without hampering or prejudicing the plaintiffs in their pursuit of the remedies they seek in this action.""
[49]
[19] Cases where such exceptions have been recognised are most commonly those where commercial information would be revealed to trade rivals.[7] The circumstances must be such to justify protection beyond the operation of the implied obligation. That protection is not limited to cases involving trade rivals. In Warburton Environment Inc v Vicforests (No 3)[2021] VSC 35, Garde J regarded Vicforests requests for a higher level of confidentiality than that provided by the implied undertaking as reasonable in relation to confidential information sought to be protected, where the release of the information could be damaging to its commercial interests or legal obligations. The Court took into account that the purposes and activities of Warburton Environment Inc included the cessation of timber harvesting in the Central Highlands and the closure of Vicforest in the Central Highlands.[8] It was contended on behalf of Counsel for the Defendant that Warburton is distinguishable from the present because the plaintiff was resisting the confidentiality order, not the defendant, unlike the present case and that the defendant is, as a matter of procedural fairness, entitled to know the case it has to meet.[9] The position of the defendant, being an unwilling party to litigation and being entitled to know the case he has to meet, is a consideration that I must take into account in undertaking the balancing exercise in the present case.
[20] As was said by McMurdo J in Seeker Aircraft America Inc v Seabird Aviation Australia Pty Ltd,[10] the jurisdiction to restrict access does not depend upon the existence of the parties being trade rivals, but rather upon the risk of a breach of an implied undertaking in relation to the use of disclosed material, and an abuse of the Court's process.
[21] However, there must be a strong case for the Court to impose such restrictions, and the Court must endeavour to ensure that litigants are not prejudiced by the restrictions in the reasonable prosecution of their claim.[11] Where there are such circumstances, the Court must strike a balance between competing interests.[12] As was stated by Bond J in after considering the relevant legal principles:
[50]
"[60] The result is that a court may impose a more onerous obligation than the implied obligation if it is persuaded by the party asserting the need for that course that the case involves exceptional circumstances such that the implied obligation provides insufficient protection. If it is so persuaded, the court will then consider whether the course proposed by that party will strike the fair balance between its confidentiality concerns and the needs of the other litigant to have access to the documents concerned."
[51]
[22] While Adani and Carmichael submitted that confidentiality orders, such as those sought are "commonplace", particularly in restricting access to the applicants' confidential documents to Mr Pennings legal advisers and experts by reference to, amongst other things, the comments of Hayne J in Mobil Oil Australia Ltd v Guina Developments Pty Ltd[1996] VicRp 54; [1996] 2 VR 34 at 40, his Honour also noted that no specific rule can be laid down, and each case turns on its own facts.
[52]
[23] Adani and Carmichael assert that the documents require additional protection because the information they contain is confidential in nature and such information is, and has been, kept confidential.
[24] The defendant conceded that the documents do contain information which is confidential, such as information as to prices and volumes. The defendant however otherwise submits that the plaintiffs have failed in showing how that the material is truly confidential, on the basis that they have not adduced evidence to justify each piece of material sought to be the subject of confidentiality orders should be afforded such protection. The defendant contends that the plaintiffs must show that each and every piece of information in each of the documents claimed to be confidential is in fact confidential. Such a proposition is inconsistent with the approach that has been adopted in decisions of this Court and I do not accept its correctness as a bald proposition. The defendant's counsel referred to the principles set out by Elliott J in Cargill Australia Ltd v Viterra Malt Pty Ltd & Ors (No 23).[14] However his Honour's judgment was dealing with a different question from the present one. That case was in respect of confidentiality orders being made in respect of evidence given in open court.
[25] The question is whether the evidence of Adani and Carmichael is sufficient to demonstrate the confidential nature of the documents to justify the confidentiality sought. That may be done by identifying the nature of the information contained in the documents. That was the approach of the applicant in Tri-Star Petroleum,[15] where it was contended that the nature of the documents in category 1 justified the need for protection under a confidentiality regime. This was in contrast to the confidential information in category 2 documents, where orders were sought that particular information said to be confidential and commercially sensitive be redacted. Consistent with the fact that confidentiality may be sort over categories of particular types of documents, McMurdo J in Seeker Aircraft,[16] in relation to a submission that an application should be made only by reference to specific documents upon which the Court should rule, stated that it is not the usual approach for the purpose of obligations such as these for the Court to examine each and every document in question. If, as in this case, the claim for confidentiality is over particular documents, the onus is on the party seeking such additional protection to establish that the character of each document, in relation to which the additional protection is sought, is such as to warrant that protection.
[53]
(a) Identifies that Adani is in possession of documents which contain information showing the location of actual worksites and proposed worksites and the detailed program for the construction of the Carmichael Mine including the timing of the works. He deposes to the fact that is similarly the case for the Carmichael Rail Scope of Works;
[54]
(b) States that the information is stored on Adani's server and is not accessible by members of the public, and it is restricted to employees who require permission to use it. The Carmichael Scope of Works is not publicly available and only accessible by authorised employees;
[55]
(c) Sets out the documents which constitute the Mine Scope of Works and the Rail Scope of Works; and
[56]
(d) States that the information is highly commercially sensitive and would assist those seeking to disrupt the development of the Carmichael Mine and Carmichael Rail.
[57]
[28] As to the supplier lists and commercial opportunities, Mr Dow sets out that Adani and Carmichael maintain lists of proposed suppliers. He also sets out the process adopted to identify those proposed suppliers and compile those lists. Each represents commercial opportunities to Adani and Carmichael as potential suppliers for goods and services needed in the operation and construction of the Carmichael Mine or the Carmichael Rail. Those lists are not publicly available and can only be accessed by authorised employees.
[29] In relation to the Carmichael Mine contracts, Mr Dow states those contracts are kept for safe keeping in the legal department, and Adani has a practice of protecting the confidentiality of its contractual dealings, and the identity of the contractors, particularly due to the need to protect their contractors from being harassed by contractors. As to the proposed Carmichael Mine contracts and proposed contractors, the negotiation process is said to be confidential, and proposed contractors are subject to a regime of confidentiality particularly to prevent the contractors being subjected to harassment. Mr Dow further states that the contracts entered into by Adani and Carmichael contain information as to the cost and value of the particular Carmichael Mine or Carmichael Rail contract and the method, or methods, of calculation of that cost or value which is commercially valuable to proposed contractors in negotiating contract arrangements with Adani and Carmichael. The Carmichael Mine and Carmichael Rail contracts contain confidentiality clauses.
[30] Mr Dow describes the level of employees given access to different Adani and Carmichael confidential information, and the security adopted to limit the access given. He states all Adani mining personnel are employed using a standard form of employment which contains an undertaking that an employee will not disclose Adani's confidential information. "Confidential information" in the employment contracts is broadly defined. That is similarly the case for Carmichael employees. Proposed contractors for the Carmichael Mine or for the Carmichael Rail are required to sign a confidentiality deed, which differs depending on whether the approach is by direct approach or through a tender. No confidential information is disclosed until the confidentiality deed has been received.
[31] Mr Dow identifies that the Adani Confidential Information has commercial sensitivity but also sensitivity regarding protestors as it reveals information about its contractors and proposed work, which can then be used by protestors to disrupt work. Mr Dow states the disclosure of the information will cause Adani harm either by disadvantaging it in its commercial negotiations for future contracts or by revealing to protestors the identity of contractors, proposed contractors or the location of works or proposed works and when they are to occur. This is said to risk interference with the construction of the Carmichael Mine or the Carmichael Rail and cause disruption by the protesters. As to the latter, I have some doubt as to whether that is sufficient to establish the information is commercially valuable in the traditional sense, but to the extent that there is information about a contractor or an entity tendering for a contract which was not publicly known and was used by protestors to target the contractor, there is evidence that has disrupted the work for the Carmichael Mine or Carmichael Rail.. There is evidence supporting the fact that Adani and Carmichael are suffering economic harm as a result of the disruption through the targeting of contractors or proposed contractors, and the disruption to construction works and that information is valuable to Adani and Carmichael.
[58]
The final determination of whether the information is confidential such as to create the basis for a cause of action for breach of confidence will of course be a matter for trial. It will also be a matter for the trial judge to determine the extent to which the Court will make orders maintaining the confidentiality of the information, which requires considerations of open justice to be balanced against any claim of confidentiality.[27]
[59]
[41] In additional to the nature of the Adani Confidential Information and the Carmichael Confidential Information having the characteristics that warrant additional protection from the implied obligation, the plaintiff contends that there are further exceptional circumstances which justify some additional protection to the implied obligation. That arises out of the conduct of Mr Pennings with the Galilee Blockade and, in particular, his involvement in the infiltration campaign and the Dob in Campaign. The campaigns are said to involve Mr Pennings and others using various online means to encourage persons in possession of confidential information belonging to Adani and Carmichael to disclose it to the Galilee Blockade, by email or by completing forms on the website of the Galilee Blockade. Mr Pennings made statements which referred to the success of the campaign, and from which it is open infer that the Galilee Blockade came into possession of the Adani Confidential Information and the Carmichael Confidential Information. Adani and Carmichael submit that the campaign subsequently carried out in targeting contractors demonstrates a willingness to misuse information received, such that there is a significant risk to the plaintiffs of further misuse of their confidential information.
[42] In the context of the infiltration campaign and Dob in Campaign, Mr Pennings is said to have encouraged persons in possession of the Adani Confidential Information and the Carmichael Confidential Information to disclose it to the Galilee Blockade. It is alleged that he knew or ought to have known that the information was confidential and was supplied in breach of duties of confidence owed by the employees, contractors or proposed contractors who possessed information of the kind that Mr Pennings was encouraging disclosure of. Mr Pennings is further alleged to have misused the Adani Confidential Information and the Carmichael Confidential Information with others by seeking to frustrate the development of the Carmichael Mine and the Carmichael Rail. Adani and Carmichael further rely on the fact that, prior to the injunction imposed, he posted a defiant video in response to a letter from lawyers acting for Adani in February 2017, placing the Galilee Blockade on notice that their campaign to seek inside information on Adani was seeking information from employees who were subject to obligations of confidentiality. Further, it stated that even if the Galilee Blockade got the information, it would not be entitled to use it, and that if it persuaded an employee to provide such information, it would be liable for inducing a breach of contract. In the video, Mr Pennings in quite dramatic and, in colourful terms, indicated that the campaign would not be affected as a result of the letter and that he would not be changing the campaign's approach. However, that sequence of events occurred in 2017. Adani further relied upon Mr Pennings not being prepared to accept an offer to settle the entire proceedings, which it contends was essentially asking him to behave lawfully and was a reasonable offer. It contends that the Court should infer that by not accepting the offer, Mr Pennings was suggesting he wished to go beyond conduct which was lawful. That cannot be given significant weight, given there may be a number reasons as to why a party may not accept an offer. Material relied upon by Adani and Carmichael to establish Mr Pennings' conduct was not refuted by the defendant.
[60]
[52] The Court must consider whether the proposed regime strikes a fair balance between the competing interests of Adani and Carmichael being protected from the risk of disclosure of its confidential information, and Mr Pennings' interests as a defendant to be properly apprised of the case against him.[33]
[53] The proposed confidentiality regime proposes that the defendant should be excluded from seeing the documents disclosed that contain confidential information, and provides that only his legal representatives and any experts may access the disclosure, subject to giving relevant undertakings. Adani and Carmichael contend that Mr Pennings will suffer no prejudice, as the orders are only sought in relation to the allegations in the Statement of Claim relating to the Adani Confidential Information, the Carmichael Confidential Information and the losses pleaded in paragraph 66(b). The plaintiffs argue the paragraphs are pleaded with sufficient detail to put the defendant on notice of the case he has to meet, and respond to the allegations. They contend that he cannot respond as to whether the information itself is confidential or not.
[54] Adani and Carmichael further contend that Mr Pennings can tell his lawyers what information and documents he has received and his lawyers, who can access the confidential information, can then ascertain whether that information is confidential or not.
[55] Adani and Carmichael further contend that Fielder Gillespie orders extend to not providing for a defendant to see documents which the Court finds warrant additional protection to the implied obligation. While I do not accept that such restrictions are common place, such orders can and have been imposed.by the Courts.[34] Whatever restrictions are put in place, the Court must be satisfied that the regime is reasonable and does not inhibit the ability of the defendant to give instructions.[35]
[56] The defendant contends that as Mr Pennings is a defendant to these proceedings, which include allegations that he has used confidential information in breach of a duty of confidence, he is entitled to know what the confidential information is that is the subject of the proceeding. The defendant submits the reverse engineering approach proposed by Adani and Carmichael will depend on the defendant and his lawyers being able to identify the information in order to respond.
[61]
(a) that Mr Pennings must provide a specific undertaking to the Court and Adani and Carmichael not to disclose the confidential information. Such an undertaking will be in the same form as provided in paragraph 4(f) of the proposed orders;
[62]
(b) that Mr Pennings' legal advisers and any expert only are to have access to the documents in respect of the calculated losses including forecast operational expenses referred to in paragraph 66(b) of the statement of claim;
[63]
(c) that the confidential information be provided in an unredacted form to Mr Pennings' legal advisers and any expert but in a redacted form for the purposes of being shown to Mr Pennings which redacts:
[64]
(i) information which discloses the pricing, cost or value of contracts or proposed contracts including the method of calculation of the pricing, cost or value;
[65]
(ii) the names of contractors, proposed contractors or potential suppliers; and
[66]
(iii) proposed worksites for the future at the Carmichael Mine or Carmichael Rail.
[67]
(d) that Mr Pennings can only view the Adani Confidential Information and Carmichael Confidential Information at the offices of his solicitors or in conference with his Counsel and is not to be provided with copies of that material; and
[68]
(e) for an application to vary the confidentiality regime upon giving five days notice to the other parties if it has not been agreed between the parties.
[69]
[75] I note that there is a provision for the defendant to challenge any claim of confidentiality in paragraph 4(j) of the proposed orders, if the defendant does not consider a document has been properly designated as confidential.
[76] A specific undertaking will bring home to Mr Pennings that the document is only to be used for the purpose of the proceedings, as was commented upon by Hayne, Heydon and Crennan JJ in Hearne v Street.[39] I do not accept that such an undertaking will be meaningless and too difficult to enforce.
[77] The proposed confidentiality orders should be amended to reflect the above reasons.
[70]
Additional Limitations on Disclosure and Particulars
[71]
[78] Adani and Carmichael also seek to limit the extent of disclosure and the particulars required to be provided in response to the defendant's request for particulars pursuant to r 224 and r 161(2) of the UCPR to the examples which have been provided.
[79] I do not consider it appropriate to presently make any orders in relation to the confidential particulars given the scope of what has been provided is the subject of challenge and there is a risk that that application and its outcome may affect the view the Court may adopt in relation to the orders sought in relation to the particulars being limited to the examples given and to the particulars being kept confidential from Mr Pennings. The interim orders providing for those particulars to be kept confidential will be continued under the dispute as to the particulars provided can be resolved.
[80] I will therefore only consider the present application to limit disclosure in respect of the confidential information.
[81] Rule 224 of the UCPR provides:
[72]
"(1) The court may order a party be relieved, or relieved to a specified extent, of the duty of disclosure.
[73]
(2) Without limiting subrule (1), the court may, in deciding whether to make the order, have regard to the following -
[74]
(a) the likely time, cost and inconvenience involved in disclosing the documents or classes of documents compared with the amount involved in the proceeding;
[75]
(b) the relative importance of the question to which the documents or classes of documents relate;
[76]
(c) the probable effect on the outcome of the proceeding of disclosing or not disclosing the documents or classes of documents;
[77]
[82] In addition to the specific powers of the Court to limit disclosure, the purpose of the rules identified in rule 5 of the UCPR must be considered. Decisions of this Court have also taken into account principles of proportionality so as to ensure that disclosure and document management practices are proportionate, having regard to the nature and stage of the proceedings, issues in dispute, the volume of potentially relevant material and the likely outcome or benefit of the material being disclosed.[40] The obligations of parties to adopt a proper and efficient approach to document management and that all steps in relation to documents are proportionate has been confirmed in Practice Direction 18 of 2018.
[83] The confidential information identified in paragraphs 5 and 21 of the statement of claim identifies the body of information in the possession of Adani and Carmichael which is confidential. It is not Adani or Carmichael's case that all of that information was provided to Mr Pennings in breach of duties of confidence. Rather, its contention is that the information provided to Mr Pennings in breach of the duties of confidence was from that pool of confidential information. The case concerns the information that he obtained, not all of the Adani Confidential Information or Carmichael Confidential Information. Adani and Carmichael submit that it is therefore of limited probative value to provide disclosure of all contracts and proposed contracts, and that it is sufficient to provide ten examples of Carmichael Mine contracts, proposed mine contracts, Carmichael Rail contracts and proposed rail contracts, each of which is representative of the form of contract that Adani or Carmichael have entered into.
[84] Adani and Carmichael have entered into some 230 contracts with respect to the mine and 120 contracts with respect to the rail. The number of proposed contracts is significantly greater.
[85] The documents which are directly relevant to the matters set out in paragraphs 5(c)-(e) and paragraphs 21(c)-(e) of the statement of claim are anticipated to be voluminous and it is estimated would cost well in excess of $500,000.00 (internal and external costs) to provide the particulars. It will be significantly less if the particulars and disclosure are limited in the way sought by Adani and Carmichael in its application. They contend the provision of all confidential documents relevant to the particulars will take considerable time and cost with little probative value by way of comparison that the order limiting disclosure is justified. In that respect, it is estimated some 23,000 documents would need to be reviewed.
[78]
[92] I therefore will order the following:
That the matter be placed on the supervised case list.
That the parties prepare minutes of orders to reflect the above reasons within 28 days of the date of this judgment. If the parties fail to agree, the matter will be relisted at a date to be fixed after the parties notify the Associate to Brown J that agreement cannot be reached.
That these reasons will initially be published to the parties only and unless the parties notify the Court that any of the reasons contain confidential material by 4 pm on Wednesday 30 June 2021 they will be published on the Supreme Court Library Queensland website on Thursday 1 July 2021.
That the defendant's application filed 10 December 2020 be adjourned to a date to be fixed.
That the particulars over which confidentiality has been claimed are to be kept confidential until such time as the defendant's application for further and better particulars filed 10 December 2020 and confidentiality in respect of those particulars is determined and subject to any order to be made.
That the parties provide submissions as to costs of no more than 5 pages within 28 Days of the date of this judgment.
That there be liberty to apply on the provision of three days notice to the other party or parties.
[31] Schedule 1:9; Schedule 1:10 is of similar sentiment and Schedule 2:15 and 16 in seeking information as to what contractors were working with Adani.
[26] Mr Dow, the CEO of Adani Australia Pty Ltd and the former CEO of Adani Mining Pty Ltd from 2018 until July 2020, has sworn to the basis upon which each category of documents pleaded in paragraphs 5 and 21 of the Statement of Claim is confidential. For each category, he has deposed to the fact that Adani and Carmichael possess information said to constitute confidential information, that the information is confidential, and how the information has been and is kept confidential.
[27] Without revealing the nature of the information contained within the category "Mine Scope of Works" and the "Rail Scope of Works" I note that Mr Dow:
[32] As to the submission of the defendant that Adani and Carmichael must show evidence of some apprehended or specific harm or damage that the disclosure of the information in question would cause, one must be cautious as to the authorities relied upon,[20] as they were directed to evidence produced in proceedings over which orders were sought, which raises additional considerations in terms of open justice. In any event, Adani and Carmichael have provided prima facie evidence as to the importance of the Adani Confidential Information and the Carmichael Confidential Information to its operations, from which one can infer specific harm would be caused if it was published to the wider public.[21] The potential damage to which they are exposed if the Adani Confidential Information and the Carmichael Confidential Information is not kept confidential may not be that to which it would be exposed if revealed to a trade rival, but it is still damage nonetheless if established.
[33] The defendant has largely not cavilled with the evidence of Mr Dow, save to assert that each piece of information sought to be made the subject of a confidentiality order requires evidence to provide it should be afforded such protection. While it accepts that Mr Dow's affidavit may establish that there is some confidential information, the defendant contends that the plaintiffs have not adduced the requisite evidence to justify each piece of material sought to be the subject of the confidentiality orders being afforded such protection. However, while, as the defendant points out, the onus is on the plaintiffs, other than in the affidavit of Ms Peacock, the defendant has not made any specific contentions as to the insufficiency of the evidence to support a finding that the information is confidential, and has not identified any particular deficiencies in the evidence, save as to currency of the information save for the submission that the evidence does not establish each and every piece of information contained in the documents in question is confidential.
[34] Ms Peacock outlined various documents over which confidentiality orders were sought,[22] which she stated had been the subject of media reports or had appeared on company websites to demonstrate that the information had entered the public domain. Mr Wilson, a solicitor acting on behalf of the plaintiffs, responded to those matters by way of affidavit.
[35] According to Mr Wilson, three tranches of the documents do not relate to the matters which are the subject of confidential particulars.[23] As such, they do not demonstrate that the information, which is the subject of the application, is within the public domain. In relation to other contractors, Mr Wilson contends that the details of the contracts entered into were not revealed.[24] Limited publication of material may not lead to information being in the public domain and it is a question of fact.[25] While KLP-5 links to websites, there is no information as to whether or not the sites are publicly accessible. It is not apparent from clicking on the links that the sites referred to are publicly available. [26] While there will no doubt be challenges to the fact that the identity of contractors is commercially sensitive and confidential, Mr Dow has deposed to the fact that the identity of contractors is kept confidential, which appears linked, at least in part, to the fact that the Carmichael Mine and the Carmichael Rail are the subject of protests. On the basis of the evidence before me, I am not presently persuaded that the contractors' identities are not confidential and within the public domain by reason of the matters in KLP-5.
[36] Counsel for the defendant also raised the question of currency of the information claimed to be confidential, arguing that it could not still be confidential and its disclosure create any potential harm. In that regard it points to the suppliers lists and the Carmichael Mine scope of works and contends that they would relate to potential suppliers identified in 2017 and activities already completed. In terms of the suppliers lists, they have been identified as being created to be able to source relevant suppliers on an ongoing basis. As to the Carmichael Mine scope of works and Carmichael Rail scope of works, the documents identified are 2019 documents, a 2020 document and an interactive document which is updated. According to Mr Dow they refer to not only actual sites of work, but potential sites as well as the nature of works and the timing of works to be undertaken. The evidence supports the fact that they do have currency and continue to be confidential.
[37] The defendant's counsel has suggested that the defendant has been at a disadvantage in this application in not having access to the material said to be confidential. While the defendant has not been permitted to see the documents, the plaintiffs submit that is not a matter, in the context of this application, that is the source of any prejudice since the defendant would not be able to provide any insight into the claim of confidentiality in respect of the documents. The legal team for the defendant would be in a stronger position to make such assessments, and the lawyers were permitted to have access to the affidavit material, including the exhibits, for the purpose of this application. I consider that instructions could be taken from the defendant to challenge claims for confidentiality without him seeing the documents concerned and the confidential material being disclosed in response to this application.
[38] I am satisfied for the purpose of this interlocutory application that Adani and Carmichael have provided sufficient evidence to establish a prima facie case that the Adani Confidential Information and the Carmichael Confidential Information is confidential and of a commercially sensitive nature, in relation to the operations of Adani and Carmichael for the construction and operation of the Carmichael Mine and the Carmichael Rail.
[39] I am further satisfied that processes have been put in place to protect and secure the information and it has not been made publicly valuable. Employees and contractors, and proposed contractors, to whom the information was revealed were subject to confidentiality obligations.
[40] I am further satisfied that there is evidence that disclosure of the Adani Confidential Information and the Carmichael Confidential Information will cause Adani and Carmichael economic harm, due to the commercial sensitivity of some of the information which, if revealed, will place Adani and Carmichael at a disadvantage in negotiating contracts with suppliers. I am also satisfied due to the sensitivity of other information because it identifies contractors and the work they are undertaking, or proposed contractors and the work they will seek to undertake. That information has been the subject of the targeted campaign and, if revealed, could be used to deter present and future contractors and works being undertaken for the Carmichael Mine and the Carmichael Rail, which will result in additional costs being incurred by Adani and Carmichael. I am satisfied that the information contained in the documents is sufficiently confidential and commercially sensitive to warrant protection beyond the implied obligation.
[43] There is evidence that supports the fact that Mr Pennings was one of the principal people behind a campaign in 2017 and 2018 to encourage people to seek employment with Adani to obtain and divulge inside information. There is also evidence supporting the fact that he later sought to obtain information which could generally only come from employees and contractors and other third parties, which could be used to cause damage to the Adani Group. His comments to The Australian and Fifth Estate indicated he was aware of the fact the information being provided to the Galilee Blockade "from insiders" and "employees and corporate rivals" was sensitive and valuable. Given those comments were in 2019 after Mr Pennings had received the letter from Herbert Smith Freehills in February 2017, one can infer he was at least aware of the possibility that the information was confidential information that the Galilee Blockade was not entitled to use. Mr Pennings, in his defence, has made various admissions of his role as registrant of the internet domain galileeblockade.net, and that he had administrative access to the Galilee Blockade website up until September 2020,[29] and was able to control what information was published on the Galilee Blockade Website. He has also admitted that until September 2020, he had administrative access to the Facebook and Twitter accounts of Galilee Blockade.[30] He admits that he published various statements on the website and on the social media accounts, which include statements seeking inside information in relation to Adani and their friends to use in Direct Action tactics to stop them.[31]
[44] The precise nature of the information disclosed to the Galilee Blockade through its campaign, and who disclosed it, is not known, although there is evidence, including Mr Pennings own statements, to support the fact that the information came from employees and contractors or proposed contractors, and the nature of the information provided was made in breach of confidentiality obligations. There is also evidence to support the contention that the Direct Action campaign engaged in by Galilee Blockade against targeted contractors was, at least in part, organised by Mr Pennings and that he was present at some of the events where contractors were targeted. This supports the fact that he and the Galilee Blockade used the information received, which may be characterised as a misuse of the information.
[45] As to Mr Pennings' conduct with the Galilee Blockade being disentitling, the defendant's Counsel contends that Mr Pennings' conduct since the granting of the injunction and his signing of an undertaking to his solicitors reflecting the implied obligation demonstrates that he is not likely to breach the implied obligation. It is therefore contended on behalf of the defendant that the proposed regime does not strike a fair balance in the circumstances of the present application.
[46] It is contended on behalf of Mr Pennings that the Court should not exercise its discretion in favour of ordering the confidentiality regime proposed by Adani and Carmichael. It relies firstly on the fact that such a regime would inhibit the ability of the solicitors to be able to take proper instructions from the defendant, and that the defendant is entitled to know the case against him.
[47] The defendant contends that Adani and Carmichael have sought to demonise him, and that his conduct since the granting of the injunction, in addition to his offer to provide a written undertaking in terms of the implied obligation, was sufficient to allay any concerns. It was submitted that the suggestion that Mr Pennings was dishonest in relation to his representation that Adani has caused his children to be followed was baseless. The actions related to the plaintiffs seeking to identify vulnerable people who could be subject to Anton Pillar orders. While I am not prepared to draw an inference of dishonesty by Mr Pennings in relation to representations made by him, and can appreciate his being upset, I do consider that his postings were more than reactive to being concerned about his children, and were self-serving to further other interests and tended to mischaracterise and dramatise Adani's actions.[32]
[48] No doubt it will be a significant issue at trial as to whether confidential information was obtained and misused by Mr Pennings. However, there is evidence which supports the allegation, at least to some extent, for the purposes of this application, which hasn't yet been disputed.
[49] The defendant contends that even if the Court was satisfied that this is a case warranting additional protection to the implied obligation, the Court should exercise its discretion to refuse the application, as it would deny him natural justice by hindering his capacity to understand and respond to the case brought against him.
[50] Mr Pennings is not a trade rival of Adani or Carmichael. However, there is evidence such that it can be inferred that Mr Pennings was targeting Adani Confidential Information and Carmichael Confidential Information and was aware of the confidential nature of some of the information. Notwithstanding that, there is evidence hewas prepared to use it in the campaign against the operations of Adani and Carmichael. Information that is prima facie confidential was part of the information targeted in that campaign. That was so even though he had been put on notice that he may be at risk of being a party to a breach of confidence by the letter provided by Herbert Smith Freehills. Mr Pennings was strategically involved in the campaigns of the Galilee Blockade, in circumstances which appeared to at least sought to illicit confidential information about Adani's operations and Carmichael's operations.
[51] I am also satisfied that there is a prima facie case that the information in question is confidential. I am satisfied that notwithstanding Mr Pennings' conduct since the injunction was granted, and the fact that he signed a written undertaking consistent with the implied obligation, which is not insignificant, his past involvement with the Galilee Blockade and his strong beliefs in the campaign against Adani and Carmichael, means that there is a risk that the documents will be misused in breach of the implied obligation. I therefore find that the present case is an exceptional case where additional protection to the implied obligation is needed in respect of the Adani Confidential Information and the Carmichael Confidential Information, notwithstanding the potential injustice to the defendant in not having full access to directly relevant material.
[57] The defendant contends that, even if the Court considered that it is appropriate to provide a confidentiality regime, there is no proper basis upon which to exclude the defendant from seeing the confidential material, given he has abided by the court orders made by Justice Martin in September 2020, and given he has signed an undertaking to the effect that he is aware of his obligations in relation to nondisclosure of material disclosed in the proceedings and that he will abide by what is required by law.
[58] If the Court did consider some additional protection was needed, Counsel for the defendant contended that there could be a process of redaction to redact the relevant confidential material, which could be provided to the defendant, and an un-redacted version could be provided to the lawyers for the defendant.
[59] The defendant contends that the problem in terms of the defendant responding is more significant in respect of particulars if they cannot be shown to Mr Pennings.
[60] Ms Peacock, in her second affidavit, has identified a number of examples derived from the statement of claim where she considers she could not take instructions from the defendant without being able to show him the documents over which confidentiality has been claimed.
[61] Adani and Carmichael however rely on an affidavit from their solicitor, Mr Wilson, that instructions could be taken from the defendant to be able to respond to the statement of claim without him being shown the documents in question.
[62] The defendant has pleaded that Mr Pennings knew or ought to have known that the Adani Confidential Information and the Carmichael Confidential Information was confidential to Adani and Carmichael.[36] It contends that the description in paragraphs 5 and 21 of the statement of claim is sufficient for the defendant to be able to understand the nature of the confidential information in order for him to identify whether or not he received such information. It may be accepted that the question of whether the material is properly confidential information is not something that Mr Pennings will be able to assist with, and upon which his solicitors would advise. Ms Peacock raises the concern that she will not be able to explain to Mr Pennings the allegations which refer to the Adani Confidential Information, Carmichael Confidential Information or the plaintiffs' confidential information to obtain full instructions from him. I find those terms are sufficiently identified for the nature of the allegations to be explained to Mr Pennings for him to understand the case against him.
[63] Similarly, the allegations in paragraphs 12, 17, 28 and 33 of the statement of claim that Adani and Carmichael, in the course of developing the Carmichael Mine and the Carmichael Rail, disclosed some or all of the Adani Confidential Information or the Carmichael Confidential Information are not allegations where Mr Pennings would need to see the confidential information to be able to provide instructions. That is similarly the case with respect to the allegations in paragraphs 13, 18, 29 and 34 of the statement of claim that Adani and Carmichael entered into confidentiality deeds with contractors or proposed contractors of Adani or Carmichael.
[64] Ms Peacock contends that she will have difficulty in obtaining instructions from Mr Pennings as to whether he knew, or ought to have known, that the Adani Confidential Information or the Carmichael Confidential Information was confidential to Adani or Carmichael respectively, as referred to in paragraphs 46(a) and 52(a) of the statement of claim. She contends that without being able to show Mr Pennings the confidential documents which are referred to in the particulars, she will not be able to take proper instructions as to whether he accessed such information and the circumstances where he might have accessed the information. Similarly, she identifies paragraphs 48(a) and 54(a) as referring to the "some or all" of the Adani Confidential Information and the Carmichael Confidential Information being disclosed to Mr Pennings. Counsel also referred to paragraphs 49(b) and 55(b), which allege Mr Pennings procured or induced Adani and Carmichael employees, contractors or proposed contractors to breach their equitable duty of confidence, and that Mr Pennings received Adani Confidential Information and Carmichael Confidential Information with actual or constructive knowledge that the information was confidential, and accordingly owed a duty of confidence. Ms Peacock submits that the defendant's legal advisors would need to be able to identify the confidential information in question, and communicate this to Mr Pennings, for the defendant to be able to provide instructions as to what he received. It was submitted that without Mr Pennings' legal advisers being able to inform him of what confidential information is being referred to, they cannot take proper instructions.
[65] Ms Peacock raises similar issues as to the allegations of conspiracy. They are not matters which raise any additional need to show Mr Pennings the confidential information than those discussed above.
[66] It was submitted on behalf of Adani and Carmichael that given full disclosure would be provided to Mr Pennings legal advisers, they are capable of obtaining relevant instructions without disclosing the substance of the Adani Confidential Information or the Carmichael Confidential Information. It is further contended that Mr Pennings could inform them what information he received to enable them to ascertain whether he had accessed confidential information or not. In any event, Adani and Carmichael contend that the relevant confidential information that was accessed is a matter known only by the defendant.
[67] At the oral hearing, the plaintiffs' counsel candidly clarified the plaintiffs' case, which does not rely on Adani and Carmichael identifying specific confidential information which had been provided to Mr Pennings. Rather, its case is that there is a body of information which is confidential to Adani and Carmichael and, to the extent it is disclosed to employees or contractors or proposed contractors, it is done in limited circumstances where the relevant parties are bound by confidentiality obligations. Its case is based on the fact that a campaign was carried out by Galilee Blockade to illicit such information, and that various statements of Mr Pennings are in effect admissions that he did in fact obtain confidential information and was aware of that fact. Thus, it was submitted on behalf of the plaintiffs that disclosing the Adani Confidential Information and the Carmichael Confidential Information as alleged in paragraphs 5 and 21 of the statement of claim to the defendant will not advance his position. Adani and Carmichael contend that Mr Pennings' receipt and misuse of the information is presently to be a matter of inference. It contends that his actions reveal he sought and obtained confidential information of the type referred to in paragraphs 5 and 21 of the statement of claim, and that enabled the Galilee Blockade to act against particular contractors against the interests of Adani and Carmichael.
[68] I do consider that some of Ms Peacock's contentions that she cannot obtain full and proper instructions if Mr Pennings is excluded from seeing any of the confidential information referred to in the statement of claim are valid. While Adani and Carmichael contend that Mr Pennings can tell his lawyer what information he received, and they can then assess whether he has received confidential information as alleged in the statement of claim or engaged in other conduct in respect of confidential information as alleged in the statement of claim, that assumes he will know that the information was confidential or that his lawyers could guide him sufficiently to get instructions to ascertain whether that was the case. I do consider such an assumption can be made without Mr Pennings being provided with some examples of the confidential information referred to in paragraphs 5 and 21 of the statement of claim. Several allegations in the statement of claim are based on what is identified as Adani Confidential Information or Carmichael Confidential Information. Paragraphs 5 and 21 of the statement of claim are very general. It is not sufficient, in my view, for Mr Pennings to know and give his instructions to his lawyers about whether he had received information that is confidential, and for them to work backwards. While Mr Pennings undoubtedly is aware of the material he has received, he does not necessarily know that it is confidential information. Nor would Mr Pennings' lawyers be able to guide him in that respect in order to illicit proper instructions without being able to provide him with a description of the nature of the confidential information alleged to have been imparted to him. If his lawyers consider that confidential information has been imparted to him, they will need to explain the basis for that advice in order to take further instructions and to advise him in respect of his case.
[69] I do not consider that Ms Peacock has explained sufficiently why notices of non-party disclosure would need to be issued to respond to the case against Mr Pennings, nor why she would need to confer with contractors or employees to put to them any matters, given Mr Pennings can give instructions as to what information he received. That of course may change if Adani or Carmichael identify the relevant employees or contractors that are said to have provided the information. This case will have to be case managed and, if such issues arise, it can be addressed on an informed basis which explains the need for any confidential material to be revealed. That is similarly the case with the general difficulties identified by Ms Peacock in her sixth example. I do not consider those matters presently weigh significantly against making orders imposing a confidentiality regime and cannot be managed to avoid any injustice.
[70] Given the nature of the case of Adani and Carmichael, Mr Pennings does not however need to be shown every confidential document which is encompassed within paragraphs 5 and 21 of the statement of claim in order to respond to the case against him.
[71] I have found that this is an exceptional case where there is evidence from which one may infer that there is a risk of misuse of confidential information. While Adani and Carmichael contend it would be an anomalous outcome for Mr Pennings to be able to see the very information they contend he had sought to obtain unlawfully, the fact remains that they have brought these proceedings in which he is a defendant and he is entitled to know the case against him sufficiently to defend himself, and that he will be prejudiced if the confidentiality regime operates in the manner proposed by Adani and Carmichael to exclude him seeing any confidential material disclosed. While I do not consider the implied obligation that arises in respect of disclosure in a proceeding is sufficient to protect the confidential information identified, as outlined above, the Court must strike a "fair balance between the legitimate concerns of the party discovering the documents and the needs of the other party of the litigation."[37] Notwithstanding his actions which, if borne out, show a propensity to disregard the law in the interests of what Mr Pennings perceives serves a greater good, Mr Pennings is now in the position of being a defendant in significant litigation where he is exposed to potential damages and permanent injunctive relief. There is no suggestion he has not complied with the orders made by Martin J in September 2020. However, given the information of Adani and Carmichael targeted by the Galilee Blockade, and the risk that Mr Pennings may, consciously or subconsciously, disclose confidential material to other members of the Galilee Blockade, or those who share his convictions about the development of the Carmichael Mine or Carmichael Rail such as in discussions about future campaigns, some information should be redacted in the confidential information shown to him.
[72] Balancing the competing interests, as I must do, and given the evidence that information was sought in the Dob in Campaign to identify individual contractors or proposed contractors, which appears to have been used to target contractors of Adani and Carmichael, I consider that the names of contractors or proposed contractors or potential suppliers should also be redacted from the Adani and Carmichael confidential material which Mr Pennings is shown. Given worksites were also the subject of campaign efforts, and information was sought about proposed worksites, I also consider, to the extent that the confidential material identifies proposed sites for work that will be carried out in the future, that should also be redacted. That information was pivotal to the Galilee Blockade campaign. Mr Pennings will be in a position to inform his legal advisers about what entities or persons he provided information about and in what circumstances that information was provided and his legal advisers will be in a position to know whether they are contractors or proposed contractors referred to in the confidential material. He will similarly be in a position to instruct his legal advisers about any potential worksites he was informed of in relation to the Carmichael Mine and Carmichael Rail.
[73] The particulars as to losses in paragraph 66(b) of the statement of claim, nor the pricing and volume information in the contracts or proposed contracts referred to in paragraphs 5 and 21 in order to provide instructions, or understand the case against him. I am satisfied these matters are of great commercial sensitivity to Adani and Carmichael and Counsel for the defendant conceded that pricing and volume information should be redacted in any documents disclosed to Mr Pennings.[38] The forecast operational expenses in paragraph 66(b) are, in my view, in a similar category.
[74] I think that fair balance in the competing interests before me will be struck by the proposed confidentiality orders being amended in order to provide:
[86] The position of Mr Pennings is if the case of Adani and Carmichael is limited to the examples of confidential information the subject of disclosure, they have no difficulty with the restriction, but otherwise full disclosure must be provided. Counsel for Mr Pennings submitted that the statement of claim has been drafted so broadly that the provision of examples will not enable them to take proper instructions, and contends that the defendant would need to be shown each particular document to see if he had seen it or had been provided with the confidential information in the document. For the reasons set out above, I do not accept that submission. In any event, Counsel for the defendant contends that it is the restrictions sought in relation to the confidential particulars which creates the principal difficulty.
[87] The defendant complained as to the breadth of the order in paragraph 7 of the proposed order which says disclosure "be limited merely to the examples identified in paragraphs 1 to 9 of the requests" which relates to the allegations in the statement of claim with respect to Adani and Carmichael confidential information in paragraphs 5 and 21. Counsel for Adani and Carmichael proposed the wording of order 7 would be amended to provide for "disclosure in respect of" rather than "for those allegations in the Statement of Claim relating to" which should be done.
[88] However, as Mr Gibson submitted on behalf of Adani and Carmichael, should they wish to rely on a contract which has not been disclosed they would have to seek leave to do so and it is unlikely they will not disclose any contract or proposed contract they wish to rely on. It is likely that the case will become further refined as it progresses and the scope of the confidential information will have to be revisited. The proposed order in paragraph 7 should be "Subject to further order". It may also be necessary to revisit the scope of the order after the dispute about the confidential particulars has been determined.
[89] I consider that the confidential disclosure should be limited in the way proposed, subject to further orders of this Court in relation to the disclosure of confidential documents. There is little probative value in providing for a large amount of documentation over which confidentiality is claimed where the case is not directed at all of that information, but rather paragraphs 5 and 21 of the statement of claim define the whole of the confidential information Adani and Carmichael have in their possession which is said to have been disclosed. The contracts of Adani and Carmichael are in a template form subject to details being inserted as to a contractor's name and other details. The evidence of Mr Dow supports the fact that the estimated cost and time of disclosing all of the contracts and proposed contracts and other confidential information is considerable and would be disproportionate to the probative value of that information. The present case is not one where the provision of all the confidential documents held by Adani and Carmichael to the defendant will advance the case of any party. Given the way Adani and Carmichael are proposing to advance their case, and the mechanisms by which Mr Pennings is said to have gained confidential information which is through the use of websites and social media, it is unlikely that he was provided with a large amount of documentation such that showing him all of the confidential information in 5(c)-(e) and 21(c)- (e) will assist in his provision of instructions and will be of little evidential value. Providing examples of the confidential information as proposed will, in my view, be sufficient to guide Mr Pennings and his legal advisers in being able to respond to the allegations against him.
[90] Having considered the amount of documents, the time and cost to undertake disclosure of all the confidential documents in paragraphs 5(c)-(e) and 21(c)-(e) of the statement of claim, and the limited probative value of that material to the allegations plaintiffs' case to which it is relevant, I am persuaded to limit the disclosure to the examples given. I will make the order contained in paragraph 7 of the draft Orders proposed by Adani and Carmichael subject to the amendment being made which I have identified above.
[91] It is plain this matter will need to be managed and I will order it be placed on the supervised case list.