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[2016] FCA 741
plaintiff. The respondent's interlocutory application filed 15 June 2016 is dismissed. Costs reserved.
Valve tried to stop its profit and revenue numbers from being made public in a Federal Court penalties case but refused to show the actual figures to either the judge or the ACCC. Justice Edelman ruled the request came too early and was not backed by specific proof of real harm. The Court noted that anyone following the gaming industry would already know Valve's Steam platform is hugely successful, making claims of competitive damage implausible. The decision underlines that courts will not easily close their files on commercial information relevant to penalty assessments; open justice comes first unless genuine necessity is shown with the material before the judge. Valve can try again at the actual penalties hearing once all evidence is available.
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In Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 the Australian Competition and Consumer Commission (ACCC) had already succeeded on liability in a consumer protection proceeding brought in the Federal Court's Commercial and Corporations National Practice Area. The proceeding was now listed for a remedies hearing at which pecuniary penalties would be determined. As part of preparation for that hearing the ACCC served interrogatories on Valve Corporation seeking detailed financial information. Four categories were particularly sensitive: Valve's worldwide gross revenue for 2011 to 1 June 2015 (interrogatory 11), worldwide net profit for the same period (interrogatory 12), and estimates of both net profit and gross revenue earned from Australian subscribers to Valve's own and third-party games over the same years (interrogatories 13 and 14).
3 cited instruments linked from this judgment.
On 15 June 2016 Valve filed an interlocutory application seeking orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) that would restrict publication or disclosure of that information. Critically, Valve did not provide the actual answers or the underlying figures to the ACCC or to the Court. Instead it relied upon an affidavit from its General Counsel, Mr Quackenbush, which set out four categories of asserted prejudice: increased competitive entry or expansion if profitability became known, greater difficulty in commercial negotiations, attraction of additional "patent troll" litigation, and heightened risk of fraudulent equipment orders. The application was expressed in broad terms but Valve later sought to characterise it as seeking only an "interim regime" pending the remedies hearing.
The ACCC opposed the application and filed evidence of publicly available material showing that Valve's scale and success were already well known. This included Valve's own website statements that Steam connects 35 million active users across 237 countries, media estimates from Forbes and the New York Times valuing the company at between US$2 billion and US$4 billion with annual revenue in the high hundreds of millions, and data from Steam Spy estimating 2015 earnings at US$3.5 billion. Valve objected to this material as hearsay and under ss 135(a) and 135(b) of the Evidence Act 1995 (Cth) but the Court found it unnecessary to rule on the objections because the material was used only to show lack of surprise, not as conclusive proof.
The application was determined on the papers. Justice Edelman dismissed it as premature, reserved costs, and indicated that any renewed application could be made at the commencement of the remedies hearing when the Court would have the information before it and could weigh all relevant factors including the public interest in transparent penalty assessments.
Justice Edelman's reasoning rests on a strict application of the statutory test in ss 37AF and 37AG(1)(a). The statute permits a non-disclosure order only where it is "necessary" to prevent prejudice to the proper administration of justice. Citing the High Court's joint judgment in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 666 [38], his Honour repeated that absent an affirmative answer to the necessity question it becomes almost meaningless to speak of information being inherently confidential enough to justify permanent protection from public view. The word "necessary" is a strong one; mere embarrassment or annoyance will not suffice.
A fundamental obstacle was that Valve had not placed the information before the Court. At [2] the judgment states that confidentiality orders are not usually made in the absence of the Court seeing the information said to be confidential. Without that material the Court could not perform the required balancing exercise. Valve's assertions of prejudice were characterised as vague, general and speculative. The four heads of claimed damage could, the Court observed at [12], be advanced in almost every pecuniary penalty case against a corporation. There was no clear evidence of a real likelihood of concrete prejudice.
His Honour was particularly sceptical of the proposition that disclosure of high profitability would harm Valve. At [3] and [13] he noted that Valve operates a platform with approximately 2.2 million Australian subscriber accounts and conducts business in many countries. It is difficult to imagine that any competitor, supplier, business partner, patent litigant or fraudster would be surprised to learn that such an enterprise is highly profitable. Publicly available information reinforced this view. The Court also doubted the ongoing commercial sensitivity of 2011 data in mid-2016.
Open justice weighed heavily. Section 37AE expressly requires the Court, when deciding whether to make a suppression order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Financial information relevant to penalty quantum, including gross revenue and net profit, is ordinarily central to the sentencing exercise. Suppressing it without strong necessity would undermine transparent administration of justice in regulator cases.
Finally, any risk that the ACCC might misuse the material was answered by the model litigant obligations, the express email undertaking given by the ACCC, and the implied undertaking recognised in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. Answers to interrogatories are not "unrestricted" documents under r 2.32 of the Federal Court Rules 2011 (Cth); third parties would require leave, which would not be granted without Valve being heard. In these circumstances no order was necessary at the interlocutory stage. The application was therefore dismissed, though not on the basis that a future application at the remedies hearing would necessarily fail.
Prior to this judgment the governing principles were those stated by the High Court in Hogan v Australian Crime Commission [2010] HCA 21. The Court had emphasised that the statutory precondition is necessity, not desirability, and that the onus is heavy. Lower court decisions such as Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198, Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533, and Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 had applied those principles in commercial and regulatory contexts, stressing that confidentiality claims must be supported by evidence of real competitive disadvantage rather than generalised assertions. The decision in Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 had drawn the distinction between information that is merely not public and information whose disclosure would advantage or prejudice trade rivals.
Edelman J's judgment does not change the statutory text but tightens its practical application in two respects. First, it makes clear that a party seeking orders over financial material relevant to penalties will ordinarily be expected to place that material before the Court before the Court can be asked to suppress it. Second, it insists that claims of prejudice must be concrete and particularised; the fact that the same arguments could be run in almost every corporate penalty case is itself a reason to scrutinise them sceptically. The judgment also gives greater prominence to the temporal dimension: even if an order is made, s 37AJ(2) requires it to last no longer than reasonably necessary. Suppressing 2011 data beyond 2017 or 2018 would require strong justification.
After the decision, parties in regulator penalty proceedings are on notice that premature, evidence-light applications made on the papers without disclosing the information are likely to fail. The judgment reinforces that open justice is not a mere platitude but a primary statutory objective that must be weighed whenever commercial sensitivity is asserted in the penalty context. It also confirms that the implied undertaking and express undertakings from model litigants such as the ACCC can adequately protect against misuse in the period before a contested hearing.
Paragraph 6 quotes the Full Federal Court and High Court in Hogan: "the question will always be: is an order necessary to prevent prejudice to the administration of justice? Absent an affirmative answer to this question it is, in my view, almost meaningless to propose that documents themselves are, or that the information in them is, inherently confidential to an extent justifying, or assisting in the justification of, the making of an order permanently protecting them from public view." In plain English, the Court is saying that simply labelling information confidential is not enough; you must prove that disclosure would actually damage the administration of justice.
At paragraph 8 Edelman J writes: "The onus of persuading the Court to make an order which restricts publication of evidence has been described as 'a very heavy one'." Translation: if you want the Court to hide evidence from the public you face an uphill battle and must bring clear, specific proof.
Paragraph 3 contains one of the most pointed observations: "It is difficult to see how there would be any surprise to a member of the public to discover that an enterprise with millions of subscribers in Australia alone, and operating in many countries across the world, is 'highly profitable'." Plain English: everyone already knows Valve is successful; claiming the sky will fall if that is confirmed is not credible.
Paragraph 21 reminds practitioners of the statutory mandate: "Section 37AE of the Federal Court of Australia Act provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." Translation: open courts are the default; secrecy orders are the exception and must be justified against that baseline.
Paragraph 25 concludes: "This application was premature and should be dismissed. It can be renewed at the commencement of the remedies hearing, if Valve considers that it is necessary to do so, when all relevant information is before the Court." In other words, come back with the actual numbers and more detailed evidence when the judge can see the whole picture.
This judgment is triggered when a respondent in a regulatory penalty proceeding seeks non-disclosure orders over financial data relevant to penalty quantification without placing the actual figures before the Court. It applies with particular force where the claims of prejudice are expressed at a high level of generality (motivation of competitors, negotiation difficulty, increased litigation or fraud risk) and where publicly available information already conveys the essential picture of the company's scale and success. The precedent is engaged whenever an application is brought on the papers in advance of the hearing at which the material will be used, rather than at the hearing itself when the Court can assess relevance, probative value and transparency interests together.
It is also engaged where the party seeking protection has not adduced evidence of concrete, imminent harm but relies instead on speculation that could be made in virtually any corporate penalty case. The decision highlights that historical data (for example, 2011 revenue in a 2016 application) will rarely justify suppression unless combined with other specific factors. Fact patterns involving model litigants such as the ACCC who have given express undertakings and are bound by the Hearne v Street implied undertaking are less likely to require court orders. Finally, the precedent applies where the information sought to be suppressed is relevant to the penalty assessment itself; in such cases the interest in open justice carries added weight.
Although the present judgment is an interlocutory decision in a single proceeding, its reasoning has been treated as reinforcing the strictness of the Hogan necessity test in subsequent Federal Court practice. Later decisions have cited the emphasis on providing the information to the Court before seeking to suppress it and the scepticism toward generalised assertions of competitive harm. The judgment's observation that the same prejudice arguments could be run in almost every penalty case has been used to caution against routine confidentiality regimes in regulator litigation. Its insistence that any order must be no longer than reasonably necessary under s 37AJ(2) has guided courts in setting temporal limits on suppression, particularly for older financial years. The decision's treatment of publicly available estimates and website statements as undermining claims of secrecy has been followed where respondents assert confidentiality over matters already circulating in the market or media. Overall the judgment is regarded as an application, rather than an extension, of the High Court's Hogan principles, and is routinely referred to for the proposition that open justice must be treated as a primary statutory objective rather than a factor to be balanced away.
The judgment leaves several practical questions unresolved. First, precisely what degree of particularity is required in evidence of prejudice before a court will move from scepticism to acceptance? Mr Quackenbush's affidavit was found too general, but the Court did not articulate a checklist of matters that would suffice. Second, at what point does publicly available information cross the line from general industry knowledge to specific financial detail sufficient to negate any confidentiality interest? The Court noted estimates in the billions but did not decide whether exact figures would add materially to that knowledge.
Third, how should a court weigh the relevance of the financial information to the penalty assessment against the claimed prejudice? The judgment flags that gross revenue and net profit are important considerations in penalty quantum but does not prescribe a methodology for that weighing once the information is actually before the Court. Fourth, what temporal limit is presumptively reasonable under s 37AJ(2)? The judgment doubts whether suppression of 2015 data beyond 2017 or 2018 would be justified, but leaves the issue open for argument on a full evidentiary basis.
Finally, the interaction between r 2.32 of the Federal Court Rules and confidentiality applications remains somewhat uncertain. While the judgment notes that answers to interrogatories are not unrestricted, it does not explore the precise test for third-party access applications once material has been read in open court or referred to in reasons. These questions will require resolution in future cases where a renewed application is brought with the actual figures and more detailed evidence before the Court.
Most practitioners assume that lodging an interlocutory application headed "confidentiality" will at least buy breathing space until the hearing. This judgment demonstrates the opposite: an application that fails to provide the information to the Court can be dismissed immediately, leaving the party with an adverse costs order (even if reserved) and the need to re-agitate the issue later. Another trap is believing that because the information is not yet in the public domain it is presumptively confidential; the Court repeatedly distinguishes "not public" from "truly confidential" and requires evidence that disclosure would advantage or prejudice trade rivals in a concrete way. Regulated entities frequently overestimate the surprise value of their profitability; where the business model is already notorious (millions of subscribers, global platform) the Court is unlikely to accept that confirming high profitability will cause material harm. Finally, many overlook that even if an order is ultimately granted, s 37AJ(2) imposes a statutory duty to limit its duration; asking for open-ended or permanent suppression is almost certain to fail. These points are rarely emphasised in correspondence but explain why experienced regulator counsel routinely resist broad confidentiality regimes at the interlocutory stage.
Introduction 1 This matter is listed for a hearing as to remedies, including pecuniary penalties. Pending that hearing, this is an application by the respondent, Valve, for confidentiality orders in respect of financial information contained in some of its proposed answers to interrogatories. Valve relies upon s 37AF of the Federal Court of Australia Act 1976 (Cth) for the confidentiality orders sought. Valve has not provided the answers to either the applicant (the ACCC) or to the Court. It submits that orders preserving the confidentiality of information that the Court has not seen are necessary to prevent prejudice to the proper administration of justice (see s 37AG(1)(a) of the Federal Court of Australia Act). It submits that the disclosure of the information that has not been provided to the Court would be "highly detrimental and prejudicial to Valve". Unsurprisingly, the ACCC opposes the application. 2 Valve's application is premature. Confidentiality orders are not usually made in the absence of the Court seeing the information which is said to be confidential. Further, there is presently no threat to any confidentiality of information that Valve might provide. When that information is provided to the ACCC it would be subject to equitable duties of confidence if it is confidential and the usual imposed duty upon the ACCC concerning its use. The ACCC has also undertaken in email correspondence that it will not disclose or use that information other than strictly for the purposes of this litigation. As for the information provided to the Court, it will not be publicly available before the hearing. 3 An assessment of whether confidentiality orders should be made would appropriately be undertaken at the commencement of the remedies hearing. At that time it would be appropriate to assess matters such as the interest of transparency in the administration of justice in circumstances, for instance, where matters such as gross revenue and net profit are important considerations in the quantum of a pecuniary penalty. However, based on the current submissions by the parties, I have serious doubts whether the information could meet the requirements for a non-disclosure order. One of the reasons for my current doubts is the vague and general nature of Valve's assertions of prejudice to it if the information is made public. Another is in relation to Valve's submission that it would be prejudiced if the public became aware that (if it were the case) Valve is a highly profitable business. This is a very surprising submission. It is difficult to see how there would be any surprise to a member of the public to discover that an enterprise with millions of subscribers in Australia alone, and operating in many countries across the world, is "highly profitable". This conclusion can be reached even without the evidence upon which the ACCC relied, but to which Valve objected, which suggested estimates of Valve's earnings in the region of multiple billions of dollars.
The alleged confidential information and the test for non-disclosure 4 By an application brought on 15 June 2016, Valve sought interlocutory orders that subject to any further order of the Court, the publication or disclosure of certain information be restricted. The information over which these confidentiality orders are sought is as follows: (1) Valve's gross revenue (from all sources of revenue) worldwide, for the years 2011 to 1 June 2015 (interrogatory 11); (2) Valve's net profit worldwide, for the years 2011 to 1 June 2015 (interrogatory 12); (3) Valve's estimate of the net profit earned by Valve from purchases (subscriptions) by Australian subscribers to Valve's video games and third party games, for the years 2011 to 1 June 2015 (interrogatory 13); and (4) Valve's estimate of the gross revenue earned by Valve from purchases (subscriptions) by Australian subscribers to Valve's video games and third party games, for the years 2011 to 1 June 2015 (interrogatory 14). 5 Section 37AF read with s 37AG(1)(a) of the Federal Court of Australia Act includes a power for the Court to restrict or prohibit the disclosure of information where the order is necessary to prevent prejudice to the proper administration of justice. Valve relies upon this ground for the non-disclosure orders it seeks. 6 In Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 666 [38], a joint judgment of the High Court said (quoting Hogan v Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205, 220-221 [42] (Jessup J)): the question will always be: is an order necessary to prevent prejudice to the administration of justice? Absent an affirmative answer to this question it is, in my view, almost meaningless to propose that documents themselves are, or that the information in them is, inherently confidential to an extent justifying, or assisting in the justification of, the making of an order permanently protecting them from public view. 7 Those remarks were made about s 50 of the Federal Court of Australia Act as it then stood. But they apply equally to s 37AF read with s 37AG(1)(a). 8 The onus of persuading the Court to make an order which restricts publication of evidence has been described as "a very heavy one" (see Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438, 442 [16] (Madgwick J)). The order must be necessary to prevent prejudice to the administration of justice, not merely that it is desirable to address a potential prejudice to the administration of justice. In Hogan v Australian Crime Commission (664 [30]) the joint judgment of the High Court emphasised that "'necessary' is a strong word". Justice Perram has explained that "[m]ere embarrassment or annoyance will not suffice": Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 [7]. 9 Valve asserts that there is prejudice to the proper administration of justice due to its claimed confidentiality in relation to the information in each of the categories outlined above. It is important to draw a distinction between information which is not public and information which is truly confidential. The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication. The interest in confidential information can be different if the disclosure of that information could "become a vehicle for advantaging or prejudicing trade rivals": Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J); see also Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 [25] (Barker J). 10 Valve asserts that the information in the categories above is both confidential and will cause prejudice to Valve if made public. Mr Quackenbush, Valve's General Counsel says that public disclosure of Valve's financial information would be damaging to Valve's business for the following reasons. (1) If the information discloses that Valve is a highly profitable business, this may motivate current competitors to increase their presence in the market, or encourage new competitors to enter into the market. Valve claims that this may disrupt Valve's relationships with third party game developers and other suppliers. (2) If Valve's private financial information is made public, Valve submits that it could make negotiations with potential business partners more difficult. (3) Disclosure of the size of Valve's business could, according to Valve, attract more third party claims such as "patent troll cases". (4) Disclosure of the relative size of Valve's business could also, according to Valve, encourage an increase in "fraudulent equipment orders" which Valve is currently attempting to address. This is a type of criminal activity whereby a person or person impersonating Valve employees makes online orders for expensive computer equipment for shipment to an address in the United States. Valve says that currently it has managed to identify all fraudulent orders. 11 I currently have serious doubts about these assertions. 12 First, it may be that these same points could be made about nearly every case involving a private corporation where pecuniary penalty orders are considered. These points involve assertions and speculation, and they do not currently appear to be supported by any clear evidence of a real likelihood of concrete prejudice. 13 Secondly, even without examining the details of Valve's net profits, it is very difficult to see how any disclosure that Valve is a highly profitable business will come as a great surprise to any fraudster, third party game developer, potential business partner, patent troll, or supplier. There are related matters to profitability that are already public information, which were discussed without any suggestion of confidentiality in the liability hearing. Those matters include that Valve has approximately 2.2 million subscriber accounts in Australia and that it operates in many countries worldwide. 14 The ACCC also provided affidavit evidence that the "Welcome to Valve" webpage on Valve's website says that Steam is the world's largest online gaming platform and that it "connects its 35 million active users to each other" and that it is "available in 237 countries" (a curious claim). 15 The ACCC also referred to numerous publicly available articles which provide financial estimates which are closely related to the information that Valve seeks orders to suppress. In one public article in a magazine in 2011 it was reported that Forbes claims various sources have valued Valve between $US 2 billion and $US 4 billion with estimated revenue in the "high hundreds of millions". In 2012, Forbes said that the "most conservative estimates put Valve's enterprise value at more than $3 billion" (although the New York Times reported in 2012 that its value was estimated at $2.5 billion). 16 The ACCC also refer to a website called Steam Spy which claims to rely on actual data provided by Valve. Information from that website has been reported more generally in the media. The website estimates that Valve generated $3.5 billion in earnings in 2015. 17 Valve objects to the evidence of the ACCC described in the three paragraphs above on the basis that the evidence is hearsay. It also objects on the basis that its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party; or (b) be misleading or confusing within s 135(a) and s 135(b) of the Evidence Act 1995 (Cth). As to the hearsay basis for the objection, Valve does not appear to have considered s 75 of the Evidence Act. As to the second basis, Valve submits that this material is liable to mislead the Court and is highly speculative. 18 Ultimately, it is unnecessary to rule on either of these bases for objections (as to which no response has been received by the ACCC because the objections were made in reply submissions, apparently without conferral with the ACCC beforehand). It suffices to observe that the evidence is not asserted to be evidence of conclusive fact. It is relied upon for the very limited purpose of showing that there is unlikely to be great surprise by any revelation that Valve's business is "highly profitable". Indeed, even without this evidence it involves more than a little intellectual strain to accept the submission by Valve that there would be real prejudice to it by disclosure that its business, with millions of subscribers in Australia alone, and operating in many countries across the world, is "highly profitable". 19 Valve also submitted that a "cursory review" of the public material "does not disclose any insight into, or the substance of, the detail of the Confidential Information". That assertion cannot be adequately assessed by the Court because Valve has not provided the Court with the "detail of the Confidential Information". 20 Thirdly, it is not immediately obvious how information from, say, 2011 will be of any real commercial interest to any of the persons to whom Valve refers in late 2016. It is noteworthy that, as the ACCC submitted, the information runs only to 30 June 2015. It is sometimes the case that historical information, combined with other matters, can be sufficient for a confidentiality order: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 [34] (Perram J). But in this case the Court has not seen the confidential information and the basis for confidentiality is expressed at a high level of generality. 21 Even apart from these doubts there is another fundamental obstacle for Valve. Any assessment of any prejudice to the administration of justice will require consideration of the interest in transparency and open justice. Section 37AE of the Federal Court of Australia Act provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Each of the matters over which Valve seeks confidentiality orders may be matters which are relevant to the assessment of remedies including pecuniary penalties. 22 Further, s 37AJ(2) of the Federal Court of Australia Act also requires that the order should operate for no longer than is reasonably necessary to achieve the purpose for which it is made. It might be open to doubt, for instance, whether it is necessary to maintain a suppression of the publication of Valve's financial information, including in any reasons for decision which are given, even for the year 2015 beyond, say, 2017 or 2018. The extent and importance of each of these matters can only be properly assessed in light of the evidence and written submissions at the remedies hearing. 23 There is no need for an immediate determination of this issue, particularly one conducted without the Court having seen the information. Rule 2.32 of the Federal Court Rules 2011 (Cth) lists documents that are "unrestricted", and available for public inspection. Answers to interrogatories are not unrestricted. This means that a third party who wishes to be granted access must obtain the Court's leave to do so. At the very least, leave would not be granted without submissions from Valve. And in circumstances in which the material has not been relied upon in open court and may be the subject of further argument about confidentiality, any such application might face formidable obstacles. 24 As to the possibility that the ACCC would disclose the information prior to a hearing, the ACCC is a model litigant. In email correspondence, the ACCC confirmed that "ACCC officers in receipt of the information… would not disclose or use that information other than strictly for the purposes of this litigation". There is also no suggestion in any of Valve's evidence that this informal email undertaking by the ACCC would be breached. The ACCC is also subject to the obligation imposed by law not to use the information for any other purpose than the purpose of the proceeding: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. Although Valve submits that without court orders there "is a risk that the Confidential Information may be made publicly available" there is no basis in the evidence upon which this submission can be supported other than the refusal of the ACCC to consent to a confidentiality regime which is broader than the orders sought in this application.
Conclusion 25 This application was premature and should be dismissed. It can be renewed at the commencement of the remedies hearing, if Valve considers that it is necessary to do so, when all relevant information is before the Court. 26 The premature nature of this application was implicitly recognised by Valve in its written submissions. Those submissions sought to confine its application to "an interim regime" which would continue only until the penalty hearing. Although Valve asserted this limited basis in some correspondence with the ACCC, it is contrary to the broad terms of the application and contrary to Valve's expressed concerns that the application was needed to protect confidential information "adduced in evidence or otherwise disclosed during the hearing" (email on 1 June 2016). Nevertheless, in circumstances in which this Court was not provided with the information which Valve says is confidential, and in light of the very general nature of Valve's assertions of prejudice and the lack of any real prospect of prejudice prior to the hearing, there is currently no sufficient basis for such a regime. The orders sought by Valve are not currently necessary to prevent prejudice to the proper administration of justice. 27 The usual order would be that Valve pay the costs of the ACCC in relation to this application. However, it may be that some of the costs of preparing this application will be duplicated if another application is brought. Although I dismiss this application on the ground that it is premature, I should not be taken to suggest that a new application should be brought. Nevertheless, it is appropriate that the costs of this application be reserved to the commencement of the remedies hearing although, on any view, the ACCC should be entitled to some, if not all, of its costs of this application even if a new application is brought. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.
Australian Competition and Consumer Commission
Valve Corporation
(1999) 88 FCR 438
(2008) 235 CLR 125
(2009) 177 FCR 205
(2010) 240 CLR 651
[2008] HCA 36
The respondent's interlocutory application filed 15 June 2016 is dismissed. Costs reserved.