12 As to confidential documents generally, that they may be confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party: Mobil Oil Australia Ltd v Guina [1996] 2 VR 34; (1995) 33 IPR 82 at 38 per Hayne JA. See also Re ACI International Ltd (1986) 11 ACLR 240 at 243; Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-81; Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 at [51]; Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [36].
13 Nevertheless, it appears to us the second respondent has legitimate concerns about the information sought being produced to the applicant. Mr Schipp deposed that the nature of the information dealt with in the tendering process is highly confidential and that a breach in probity could lead to the entire tender process being jeopardised. We accept that evidence. The material sought is clearly of a highly confidential nature and it would be inappropriate to make it generally available to the applicant or any other person not authorised to receive it. We consider, however, the second respondent's concerns may be addressed by limiting, for the time being, access to the material to the applicant's legal representatives with appropriate confidentiality undertakings being given: see the approach in Mobil Oil at 39-40.
14 We would not have adopted this course unless we considered the documents have a legitimate forensic purpose, which brings us to the second of the Department's objections. As the applicant submitted, the question in relation to the exercise of discretion to require production and permit inspection is whether the documents have "apparent relevance" to the issues arising in the proceedings: National Employers' Mutual General Association Ltd v Waind and Hill at 385; WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) at [29]; Coombs v Patrick Stevedores Holdings Pty Ltd [2001] NSWIRComm 39; (2001) 103 IR 417 at [52]. It was stated in Attorney General v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 at 681 per Hunt CJ at CL:
The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (at 17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a pre requisite before the balance required for that claim can be struck.
15 It was the second respondent's submission that the documents had no legitimate forensic purpose and were not relevant because it had stipulated by way of a concession that there was a "possibility" that a successful tenderer would offer lower wages and less generous conditions of employment to its employees in operating the Parklea Centre than those that currently applied under the awards referred to in the application. On that basis, it was submitted, it was not necessary to produce the documents in order for the applicant to know what a tenderer was proposing in respect of wages and employment conditions.
16 Contrary to that position of the second respondent, we are of the view that the applicant and the Commission are entitled to know whether it is indeed intended that a tenderer, if it is successful, will operate the Parklea Centre on the basis of lower wages and conditions of employment than presently apply. It may be a material consideration, in assessing the applicant's claim, just what is the difference between the current level of benefits provided and what is proposed to apply by a private contractor and, in that respect, the applicant is entitled to know in order that it may fashion its case accordingly. There may be other matters disclosed by the documentation, for example, the nature and history of the private operator's industrial or employment practices that are material considerations in these proceedings.
17 As to relevance, that issue has largely been addressed. However, what we have said does not prevent the second respondent taking an objection, based on relevance, to any particular summoned document that the applicant seeks to tender in the proceedings.
18 It follows from what we have said that the documents referred to in paragraphs 2, 3, 6 and 7 of the Summons for Production are to be produced only to the applicant's legal representatives subject to the giving of appropriate confidentiality undertakings by them. The notice of motion will be dismissed.
Orders