Cargill Australia Ltd v Viterra Malt Pty Ltd

2 However, in the final paragraph of Ruling No 13,[2] it was stated that it was not intended to shut out the Viterra Parties from making an application for access in the future, if so advised.[3]

3 By summons dated 30 August 2018, the Viterra Parties have now made a further application based on sworn evidence as to the reasons why access to the documents ought to be granted.[4] Broadly speaking, access will be granted as sought.

4 The trial commenced on 18 June 2018. Since then, both the Cargill Parties and the Viterra Parties have repeatedly made applications with respect to discovery and inspection.[5]

5 Relevantly, as a result of an application made by the Viterra Parties, on 19 July 2018, the court ordered that the Cargill Parties discover further documents ("the 19 July Orders").[6] At the hearing of the Viterra Parties' application, the Cargill Parties argued the documents sought were not relevant to the issues in the proceeding. That position was rejected by the court.[7]

6 Pursuant to the 19 July Orders, the Cargill Parties have made further discovery ("the Confidential Discovered Documents"), and access has been given to external lawyers, and certain nominated experts, upon the giving of confidentiality undertakings to the Cargill Parties. However, until now, no employee or officer of the Viterra Parties has been given access.

7 The Confidential Discovered Documents concern the proposed sale or divestiture of the global malt business of the first third party, Cargill, Inc ("Cargill's Malt Business").[8] The Confidential Discovered Documents include information relating to the value and anticipated sale price of Cargill's Malt Business, including the value of the business which is the subject of dispute in this proceeding.

8 Ruling No 13 was the subject of criticism in the Viterra Parties' submissions made on this application, principally for 2 reasons. I will address these briefly.[9]

9 First, it was submitted that the court erred in stating that the Viterra Parties were required to demonstrate a "need for access" to the Confidential Discovered Documents to be disclosed to Weber.[10] It was contended the court misdirected itself, as it was unnecessary to establish such a need in order to gain access as sought. However, the Viterra Parties' submissions ignored the observation in Ruling No 13 that the onus lied on the Cargill Parties to demonstrate the appropriateness of the restrictions sought to be imposed in respect of access to the Confidential Discovered Documents.[11] The "need" referred to had been identified in circumstances where the court was engaging in a balancing exercise and the Cargill Parties had discharged the onus upon them as to the general suitability of the confidentiality regime already in place.[12] No error has been identified.

10 Secondly, it was submitted that the court impermissibly drew an inference concerning the ability of counsel to cross-examine on the Confidential Discovered Documents in the absence of instructions from Weber.[13] In support of this, Weber gave evidence that he did not accept the cross-examination was unaffected. Weber referred to the Cargill Parties having previously submitted, in seeking to limit the ambit of the 19 July Orders, that the cross-examination had not been focussed on any "real issues" in the case. Weber continued:

It is evident from the conflicting statements that such cross-examination is not going "fine", and I take no comfort from them. Based on this limited information, and being unable to confer further with [the Viterra Parties' solicitors] on these matters, I believe that progress as to the "real issues" in this case has been unsatisfactory.

11 In my view, the contention by the Viterra Parties on this issue is without substance. If counsel for the Viterra Parties had any perceived difficulty with cross-examination, the matter could have been raised with the court. It was not. Further, no evidence on the application was led to the effect that any external lawyer involved in the preparation or conduct of the cross-examination had experienced any particular difficulty. In these circumstances, it must be inferred that, from the external lawyers' perspective, no difficulty was experienced or perceived.

12 Further, to the suggestion that the external lawyers, including counsel, may not appreciate the existence of any such difficulty because of the absence of instructions, this possibility is more illusory than real. The information the subject of the Confidential Discovered Documents involves the possible sale or divesting of Cargill's Malt Business. Weber has sworn he has no significant understanding or knowledge of the malting industry. In short, no legitimate forensic purpose had been established on the previous application as to why Weber himself needed access to documents that are highly confidential to the Cargill Parties.[14]

13 If the present application had proceeded as previously, namely based on the bare assertion that the external lawyers could not properly deal with the Confidential Discovered Documents without instructions from Weber, it is quite possible it would have failed. However, there are a number of fundamental differences between the application the subject of Ruling No 13 and the application presently made.

14 First, Weber has referred to the documents as being relevant to his ability to give instructions concerning settlement of the proceeding. This had not previously been referred to. The Confidential Discovered Documents are directly relevant to the amount of any loss which might have been suffered by Cargill Australia.[15] Plainly, such documents must also be relevant to any assessment about an appropriate amount to settle the proceeding. Further, evidence at trial has demonstrated that settlement has been attempted. On 30 August 2018, David Mattiske, the managing director of Glencore Grain Pty Ltd in Australia and New Zealand at the times relevant to this proceeding, gave evidence that the Viterra Parties had "offered Cargill money" to settle the proceeding.

15 In these circumstances, Weber should be given access to Confidential Discovered Documents in order to properly assess the appropriateness of any further offer to settle, the amount of any such offer and the means by which to frame or explain such an offer. Naturally, external lawyers are not in a position to advance such matters without instructions.[16]

16 Secondly, an application has now been made by the Cargill Parties to confine the operation of the 19 July Orders. Weber has taken exception to the Viterra Parties conferring with the Cargill Parties in this regard, unless he is able to give informed instructions about how the ambit of the 19 July Orders ought to be limited. By the Viterra Parties participating in a process to limit the operation of the 19 July Orders (which was in progress until Weber sought to intervene), they would necessarily be giving away a vested right to access relevant documents pursuant to the 19 July Orders. In these circumstances, the lawyers acting for the Viterra Parties are entitled to get instructions before acceding to any limitation upon the operation of orders previously made by the court.

17 Thirdly, the Cargill Parties have now sought to tender some of the Confidential Discovered Documents in their case, despite having previously argued that the documents were not relevant to issues in the proceeding. The court has also been informed that a significant number of the Confidential Discovered Documents are to be relied upon by the Cargill Parties' experts. In circumstances where the Cargill Parties now positively rely upon the Confidential Discovered Documents to advance their case, Weber ought to be entitled to review them and give instructions for the purposes of the Viterra Parties' defence and related matters.

18 Fourthly, not only has Weber now gone on oath as to the basis upon which access to the Confidential Discovered Documents is sought,[17] he has also offered to give a confidentiality undertaking to the court. This was not previously offered.[18]

19 Fifthly, the Cargill Parties' have changed their position with respect to the access that ought to be given. Previously, the Cargill Parties said access ought not be given to either Weber or Damian Fitzgerald ("Fitzgerald").[19] Fitzgerald is in-house counsel for the Viterra Parties, except Glencore. In seeking to resolve the issues concerning this application, the Cargill Parties made an open offer for Fitzgerald, rather than Weber, to be given access. Such an offer appears to implicitly acknowledge that there is some merit in the application. However, during the course of the trial, the court has directed the parties to confer in order to seek to resolve the multitude of interlocutory applications that are continually made in this proceeding. Given the Cargill Parties were acting pursuant to this direction, I refer to this matter for completeness rather than as a primary basis for granting the application.

20 For the reasons set out above, in the exercise of the court's discretion in balancing the relevant factors,[20] Weber will be allowed access to the Confidential Discovered Documents. In my view, any 1 of the first 3 matters referred to above would be sufficient to outweigh the competing factors.[21] When those matters are viewed collectively, together with the other matters referred to above, that position is fortified.

21 A further matter which was taken into account in previously denying access was the evidence relating to information concerning third parties contained in the Confidential Discovered Documents.[22] This evidence included financial information of a proposed joint venture partner provided to the Cargill Parties under a non-disclosure agreement imposing restrictions on dissemination. I have taken this matter into account in reaching the conclusion expressed above. In my view, the confidentiality regime to be imposed by the proposed undertaking,[23] together with considerations of the due administration of justice in the conduct of this proceeding, mean that these private arrangements must be subject to access being given in the limited circumstances proposed.

22 The Cargill Parties submitted it was inappropriate for Weber himself to have access to the Confidential Discovered Documents. In essence, the Cargill Parties submitted that Weber's position within the Glencore hierarchy, together with a number of other matters, made it inappropriate for access to be given.

23 In seeking to advance this point, on 3 September 2018, the Cargill Parties served a notice to produce on the Viterra Parties requiring them to produce Weber's current curriculum vitae, his current role description at Glencore, the current structure or organisational charts for the legal department for Glencore, and any documents which record inquiries made of Weber regarding the confidential information of the Cargill Parties reviewed by him to date in the course of the proceeding.[24] When this notice was called upon, no documents were produced.

24 In order to establish the unsuitability of Weber, the Cargill Parties contended:

(1) Weber has no relevant experience with respect to the subject matter of the Confidential Discovered Documents.

(2) No undertaking as to damages has been offered by the Viterra Parties in respect of any undertaking given by Weber.

(3) Weber resides outside the jurisdiction and there was nothing the court could do to make good any damage flowing from any breach of the undertaking.[25]

(4) Until recently, Weber did not hold a current practising certificate in any jurisdiction in the world. Weber only recently obtained a practising certificate for the New York Supreme Court, his previous certificate having been allowed to lapse. The Cargill Parties invited the inference to be drawn that the practising certificate had been obtained solely for the purpose of responding to the opposition by the Cargill Parties to this application. The Cargill Parties further submitted the fact that Weber now holds a current practicing certificate is of little comfort to the Cargill Parties in the event of any breach of a confidentiality undertaking in this proceeding.

(5) Weber's evidence about his role at Glencore was guarded and limited. His evidence ought not be accepted insofar as he suggests it would be unlikely he would have any occasion to use the information the subject of the Confidential Discovered Documents for purposes other than those connected with this proceeding.

(6) No offer has been made by Weber or Glencore to give an undertaking to the effect that Weber would not be involved in any malt or grain deals in the future, for a defined period or otherwise.[26]

(7) Although Glencore is not presently involved in the malting industry, publicly available material indicates that Glencore takes an opportunistic approach to mergers and acquisitions and it may well be a trade rival of the Cargill Parties in the future.

(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.

26 Although this deals with the specific matters raised, there are some further relevant matters that should be identified. Weber has already given confidentiality undertakings in this proceeding in order to gain access to documents discovered on a confidential basis. The Cargill Parties have not previously taken exception to Weber being granted such access. Weber gave evidence that he has complied with the confidentiality undertakings previously given at all times, and there has been no suggestion that he has done anything in the past to breach those undertakings.

27 Further, Weber gave evidence that when others at Glencore have inquired (knowingly or otherwise)[33] with respect to matters the subject of the confidentiality undertaking, he has simply declined to provide any answer other than referring to the existence of the confidentiality undertakings. He has also, in effect, deposed to his understanding of the importance of complying with any confidentiality undertaking given and the appropriate steps he would take in the event an issue arose.

28 A final matter needs to be addressed. Consistent with the open offer referred to above,[34] in opposition to access being given to Weber, the Cargill Parties proposed that Fitzgerald alone should be given access to the Confidential Discovered Documents. In my view, this is not an appropriate course in circumstances where:

(1) Principally, it is a matter for the Viterra Parties as to whom they nominate.

(2) Fitzgerald is likely to be a witness in the case, whereas Weber is not.

(3) Fitzgerald is not in-house counsel for Glencore. Glencore is the holding company with ultimate responsibility for the conduct of the Viterra Parties' case.

(4) Weber has been responsible for the conduct of this proceeding on behalf of the Viterra Parties from the outset.[35] Although, on occasion, Fitzgerald has sworn affidavits on behalf of all the Viterra Parties, including Glencore, it is Weber that has the ultimate responsibility.

29 In the circumstances set out above, no compelling reason has been given as to why Fitzgerald ought to be substituted for Weber. The fact that Fitzgerald is an Australian legal practitioner, and Weber is not, does not override the considerations in favour of Weber being granted access.

D.3 Whether certain documents ought to be excluded

30 In the event that the court were minded to grant access, the Cargill Parties submitted that access should not be given to documents numbered 4 and 50 of the Confidential Discovered Documents. This was put on the basis that those documents expressed the aspirational position of Cargill, Inc, and the figures contained in them were not based upon any valuation method.

31 The Cargill Parties have not demonstrated any good reason why these 2 documents ought to be excluded. The double hearsay evidence put forward in opposition to the granting of access,[36] referred to in the preceding paragraph, does not sit comfortably with the contents of the documents themselves. The first of the documents, on its face, adopts valuation methods, however rudimentary. The second document seems to use the same figure as that in the first document, albeit in the first document it is used as part of a range. In any event, even if that hearsay evidence were accepted, the documents are still relevant. Further, the distinction now sought to be drawn was not previously raised by the Cargill Parties in resisting the granting of access to external lawyers and experts.

32 For the reasons stated, upon the giving of an undertaking to the court in the agreed form, access to the Confidential Discovered Documents will be granted to Weber. The documents will be provided electronically, but will not be sent to Weber on the Glencore digital network. Rather, an order will be made to ensure the Confidential Discovered Documents are provided by a secured means and that access will be confined to Weber alone.[37]

I, MATTHEW MICHAEL WEBER, of Glencore International AG

HEREBY UNDERTAKE TO THE COURT in relation to the copies of documents in the list produced by the plaintiff in accordance with orders made by the Honourable Justice Elliott on 19 July 2018 (including the documents listed in Schedules 1 and 2 in the list of documents dated 22 August 2018) and copies of any other documents discovered or otherwise produced pursuant to those orders (Confidential Documents) as follows:

(1) I will not disclose the contents of the Confidential Documents in any way to any person other than:

• (a) Lawyers working at King & Wood Mallesons in this proceeding who have signed an undertaking in the form annexed to the Orders dated 7 August 2018 (7 August Undertaking) or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin;
• (b) The external counsel engaged by King & Wood Mallesons to act on behalf of the defendants in this proceeding who have signed a 7 August Undertaking or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin;
• (c) Accountants and analysts at Axiom Forensics involved in the preparation of expert evidence as to loss or damage for the purpose of this proceeding, who have also signed a 7 August Undertaking or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin.

(2) This Undertaking not to disclose the information includes disclosure in any way of the contents of the Confidential Documents to any person including to the defendants or to any other person advising or working with the defendants or any party or person other than those described at paragraph (1) above.

(3) I undertake not to make any copies of the Confidential Documents or any part of them or otherwise to make any record of their contents including by way of taking notes, photographs or screenshots, other than to upload into the Data Room any communications which contain the Confidential Documents or any part of them. I undertake to destroy all copies of any such communications as soon as they are uploaded to the Data Room.

(4) I undertake to ensure that, when viewing the Confidential Documents, I do so in circumstances where they cannot be viewed by others (other than those described at paragraph (1) above).

(5) At the conclusion of this proceeding, I will confirm in writing to Gilbert + Tobin, by giving notice in writing to King & Wood Mallesons, I do not have any copies of the Confidential Documents or any part of them, or any communications containing the Confidential Documents or any part of them.

(6) The provision of this Undertaking does not constitute any acknowledgement in relation to the question of whether the Confidential Documents do in fact contain information of a nature that warrants their inspection in this proceeding to be limited. The terms of the Undertaking may be varied by written confirmation from Gilbert + Tobin or by order of the Court.

(7) I undertake only to access the Confidential Documents in accordance with the means set out in the Court's orders dated 14 September 2018.

(formerly VITERRA OPERATIONS LTD (ACN 007 556 256))

GLENCORE INTERNATIONAL AG (D-U-N-S NBR 48 070 9963)

CARGILL MALT ASIA PACIFIC PTY LTD (ACN 004 287 352)

(formerly JOE WHITE MALTINGS PTY LTD (ACN 004 287 352))

GLENCORE INTERNATIONAL AG (D-U-N-S NBR 48 070 9963)

[1] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478.

[3] The Cargill Parties submitted this application was a "de facto" appeal from Ruling No 13. In circumstances where Ruling No 13 expressly permitted the type of application now being made, it is unnecessary to address this point.

[4] These reasons have been provided as a matter of urgency so as to not interfere with the progress of the trial. Accordingly, I will only revisit the relevant principles discussed in previous rulings to the extent strictly necessary.

[5] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454, [21].

[6] For the details, see Ruling No 13, [2].

[7] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [50]-[52]. See also [28].

[8] Cargill's Malt Business covers various regions of the world and is held by various subsidiaries of Cargill, Inc, including the second third party, Cargill Malt Asia Pacific Pty Ltd (formerly Joe White Maltings Pty Ltd).

[9] There has been no application for leave to appeal with respect to Ruling No 13.

[12] See also Skyscanner Ltd v Hotels Combined Pty Ltd (No 2) [2016] NSWSC 326, [6] (Slattery J); Civic Video Pty Ltd v Paterson [2013] WASCA 107, [26]-[31] (Pullin and Murphy JJA); Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd [2010] FCA 377, [11]-[15] (Tracey J); Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663, [6]-[7] (Gordon J); Wright Prospecting Pty Ltd v Hancock Prospecting Ltd [2007] WASC 81, [7] (Murray J); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.6, 39.8-40.7 (Hayne JA, with whom Winneke P and Phillips JA agreed).

[14] Cf Wright Prospecting Pty Ltd v Hancock Prospecting Ltd [2007] WASC 81, [7].

[15] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [50]-[52].

[16] For completeness, the Confidential Discovered Documents have also been provided to the Viterra Parties' accounting expert, who is also not in a position to advance any settlement discussions.

[17] Cf Ruling No 13, [14]. The "need" for access to the Confidential Discovered Documents was previously asserted from the bar table, rather than being a matter of evidence.

[18] The form of undertaking is annexed to these reasons.

[19] Access was formerly sought by the Viterra Parties for both Weber and Fitzgerald, but ultimately they only pursued their application for access with respect to Weber: Ruling No 13, [9].

[20] See Ruling No 13, [11]-[12]; fn 12 above.

[21] Including matters directed specifically to Weber having access: see pars 22-29 below.

[23] See par 18 above.

[24] As to the last of these matters, see par 27 below.

[26] Cf Cadbury Pty Ltd v Amcor Ltd (No 2) [2002] FCA 663, [11].

[27] At [15]-[16].

[29] Glencore voluntarily submitted itself to the jurisdiction of the court.

[32] In Weber's affidavit in response to the evidence previously led by the Cargill Parties and relied upon in this application, it was stated that the matters referred to were "not dealt with by [Weber] at all".

[33] Weber indicated it was possible the Glencore employees had not appreciated their inquiries touched upon information the subject of a confidentiality regime.

[34] See par 19 above.

[35] See par 25(3) above.

[36] The affidavit of the Cargill Parties' solicitor relied upon instructions from the Cargill Parties' in-house counsel, who was not the author of either of the documents in question. Further, the source of in-house counsel's information was not disclosed. The same failure to disclose the source of information specifically with respect to these 2 documents existed in a previous affidavit sworn by in-house counsel on 21 August 2018.

[37] The submissions of the Cargill Parties also resisted access being given to Weber on the basis that a satisfactory proposal had not been put forward by the Viterra Parties as to how Weber would access the electronic documents. I chose not to directly engage in this issue, but directed the parties to confer to agree upon an appropriate means of access. No agreement was forthcoming, and competing proposals were put. The orders made today largely accorded with the Cargill Parties' proposal, but were made subject to further order in the event Weber experienced any material difficulty under the access regime ordered.