(1) The fact that Weber has no relevant experience with respect to the subject matter of the Confidential Discovered Documents is relevant to the issues concerning his ability to give instructions in the conduct of case. Indeed, this was taken into account in Ruling No 13 in denying access.[27] However, Weber's lack of experience is not relevant to the matters identified in paragraphs 14 to 17 above. Regardless of his level of experience, Weber is entitled to access to give proper instructions on matters pertaining to settlement, the proposed narrowing the Cargill Parties' discovery obligations, and in respect of the Viterra Parties' defence to the documents in evidence and to be the subject of expert evidence.
(2) Although, I previously referred to the absence of an undertaking to damages as a factor to take into account in denying Weber access,[28] this was done in the context where Weber himself had not offered to give an undertaking to the court with respect to confidentiality. Further, the court is seized of this matter and will still be dealing with it for many months to come. If there were any issue as to compliance with the undertaking in the foreseeable future, the Viterra Parties will remain subject to the jurisdiction of the court.[29] Furthermore, there is evidence that the Viterra Parties have significant assets in Australia. It follows that while this issue continues to be a relevant factor, it does not, itself or when considered with other relevant factors, provide a sufficient reason not to permit access.
(3) The fact that Weber resides outside the jurisdiction is also a relevant factor. However, Weber is directly responsible for the conduct of the proceeding on behalf of the Viterra Parties, and has been from the outset. It is likely this role will continue. In the circumstances, while Weber's location is a relevant factor, it does not outweigh the competing factors relevant to the ability of the Viterra Parties to defend a case in a manner consistent with the due administration of justice.
(4) The fact that Weber did not hold a current practising certificate in any jurisdiction in the world until recently is of little moment. The Cargill Parties originally submitted the absence of a practising certificate was a relevant matter, but it has been addressed by Weber taking the steps required to reinstate his previously held position. Further, Weber has been an attorney since 1995. He gave evidence that he has never been subject to any disciplinary hearing and has "no disciplinary history in the State of California or otherwise". In short, there is no evidence to suggest Weber would or might act inappropriately with respect to any confidential information. Moreover, the Cargill Parties have chosen to sue Glencore, a foreign corporation, in this jurisdiction. In so doing, the Cargill Parties must accept that a likely consequence, in the ordinary course, would be that information concerning the proceeding would need to be considered by persons who reside outside the jurisdiction.[30]
(5) The issues raised in paragraph 24 (5), (6) and (7) above may conveniently be dealt with together. As to Weber's evidence about his role at Glencore, it was not the subject of challenge. The Cargill Parties foreshadowed making an application to cross-examine Weber on his evidence on this application (which was opposed), but decided not to proceed with that application. Notwithstanding this, the Cargill Parties criticised Weber's evidence on the basis of what it did not say, rather than what it said. In particular, the Cargill Parties focused on the absence of any evidence from Weber as to what his "customary and typical" functions were as a matter of fact. The Cargill Parties submitted the court could not be satisfied that Weber would not be involved in any decision making process with respect to Glencore having some involvement in the malting industry in the future. Whilst it must be accepted that there is a possibility of Glencore, and also Weber, being involved in a transaction or transactions concerning the malting industry in the future,[31] on the evidence that possibility is quite remote.[32] In any event, the possibility, however real, does not outweigh the legitimate forensic requirements identified for Weber to have access.