Cargill Australia Ltd v Viterra Malt Pty Ltd

2 The Previous Access Orders had been sought by all the defendants ("the Viterra Parties")[7] and were opposed by the Cargill Parties. Upon the Previous Access Orders being made, and the reasons being published ("Ruling No 16"),[8] the Cargill Parties sought leave to appeal. The Previous Access Orders included a stay,[9] so that the confidentiality with respect to Weber could be preserved until the Court of Appeal became seized of the matter.

3 On 12 October 2018, leave to appeal was granted and the appeal was allowed. For the reasons published ("the Appeal Reasons"),[10] the hearing of the application was remitted to me for further hearing and determination.[11]

4 Upon the further hearing of the application, both the Cargill Parties and the Viterra Parties took the opportunity to file further affidavits in support of their respective positions. In addition, contrary to their earlier position, the Viterra Parties offered to give an undertaking as to damages to the court in respect of any breach of Weber's Undertaking. Also, in contrast to the Cargill Parties' former position, the Cargill Parties withdrew an open offer for access to be given to another in-house lawyer (of the Viterra Parties, except Glencore).[12]

5 For the reasons that follow, it will be ordered that the Confidential Documents must be made available for inspection by Weber. Such access will be granted upon reaffirmation of Weber's Undertaking to the court and upon the Viterra Parties jointly and severally giving undertakings as to damages with respect to any possible breach of Weber's Undertaking in the future.

6 By way of broad overview only, the key events in this proceeding may be stated shortly.

7 On 4 August 2013, Cargill Australia agreed to purchase a business, comprising certain "shares and assets used in connection with" the business of Joe White ("the Joe White Business") from 1, or, alternatively, all of the Viterra Parties except Glencore, for the sum of $420 million ("the Acquisition Agreement"). The purchase was completed on 31 October 2013 ("the Acquisition").

8 The Cargill Parties allege Cargill Australia entered into, and later completed, the Acquisition Agreement in reliance upon certain representations and warranties, which they contend were, compendiously, misleading. The misleading conduct is alleged to have included a failure to disclose that malt was supplied "routinely" to Joe White's customers that did not comply with contractual requirements and specifications, without the customers' knowledge. This conduct is alleged to have been accompanied by the supply of certificates of analysis that misstated the results of analytical testing, thereby indicating that the contractual requirements and specifications had been complied with when they had not ("the Viterra Practices"). It is further alleged that the Viterra Practices were recorded and endorsed by certain written policies ("the Viterra Policies").

9 The Cargill Parties make claims under the Competition and Consumer Act 2010 (Cth), contractual claims (including breach of warranty) and claims based on breach of duty and deceit. The loss claimed is in the hundreds of millions of dollars.

10 The Viterra Parties do not admit the allegations concerning the Viterra Practices and the Viterra Policies, or any knowledge of them, and otherwise, broadly speaking, deny the substantive allegations made. Further, reliance is placed upon the due diligence carried out before the Acquisition, and various disclaimers, acknowledgements, releases and limitations of liability. Allegations are also made against the Cargill Parties suggesting a want of care. Furthermore, issues concerning proportionate liability are raised. Amongst other things, it is alleged Cargill, Inc, Joe White and 2 other third parties, who were employed by Joe White at the relevant times,[13] are "concurrent wrongdoers" for the purposes of the Competition and Consumer Act and the Wrongs Act 1958 (Vic).

11 For the purposes of this application, it is unnecessary to refer to the allegations between the Viterra Parties and the other third parties, or to the allegations in the reply and defence to the defence and amended counterclaim. Suffice to say that there are many questions raised, with the list of issues presently identifying 128 distinct matters for determination by the court, many of which contain numerous sub-issues.

B.2 Evidence led at trial giving rise to further discovery

12 There have been 32 lay witnesses called at the trial. A significant number of them have touched on issues relevant to this application. Before turning to some of this evidence, it is convenient to refer to the evidence that alerted the Viterra Parties to the existence of the Confidential Documents.

13 Early in the trial, during the course of the cross-examination of Aimee Breszee ("Breszee"),[14] the second witness called by Cargill Australia, evidence was adduced concerning a proposed disposition ("the Proposed Disposition"). Breszee deposed that the Proposed Disposition involved the global malt business operated or ultimately controlled by Cargill, Inc, including the Joe White Business ("Cargill's Malt Business"), was to be by way of sale or joint venture, and was the subject of related documentation. As part of that evidence, the court was informed that valuations had been prepared of Cargill's Malt Business.

14 In response to a call for the valuations, the Cargill Parties produced 2 documents ("the Initial Confidential Documents"), but in a redacted form. Upon the giving of confidentiality undertakings, redacted versions of the Initial Confidential Documents were made available to the opposing parties' external solicitors and counsel.[15]

15 As to other evidence led at trial by Cargill Australia concerning issues related to this application, there has been evidence regarding the Cargill Parties' involvement in the grain industry (including barley) and the business of selling malt.[16] Further, the Cargill Parties have led evidence, without any claim for confidentiality, concerning Cargill, Inc's decision-making processes with respect to the acquisition of businesses and business activities more generally.

16 Although much of this evidence touches upon events from 2012 to 2014, there has been no evidence to suggest the underlying approach and principles applied have changed. On the contrary, the evidence from a number of the Cargill Parties' witnesses has been that the ways in which Cargill, Inc and its subsidiaries conduct business are very definite, well-established and, within the organisation, transparent. These established approaches, according to evidence led by the Cargill Parties, are well-adhered to.

17 Such evidence led by the Cargill Parties includes:

(1) The role and function of Cargill, Inc's board, including the board's usual procedures regarding meetings and preparation.

(2) The role and function of the various corporate leadership teams, including with respect to proposals for acquisitions and which acquisitions require the leadership teams to seek board approval.

(3) The role and function of business unit platforms, including their decision-making processes and their authority with respect to acquisitions (or not proceeding with acquisitions).

(4) Cargill, Inc's approaches to strategic decision-making, including the operations underlying them such as a project "tag" and workstream leads.

(5) Key documents and templates used by Cargill, Inc in preparation for an acquisition.

(6) Cargill, Inc's regional activity in the barley market in 2012, and its strategic priorities and margins.

(7) Cargill, Inc's regional activity in the malting market in 2012, and its strategic priorities and margins.

(8) The key employees of Cargill, Inc for the acquisition of Joe White, and the roles each of them was required to carry out.

(9) Cargill, Inc's approach to valuing businesses or companies the subject of a proposed acquisition, including the extent to which external advisers would ordinarily be retained for "medium size" transactions.

(10) The significance of synergies to Cargill, Inc's approach to a possible acquisition and to valuing a target business or company, including with respect to purchasing a malt business and its potential synergies with Cargill, Inc's other malt businesses and its grain trading. In this regard, evidence was led of Cargill, Inc giving "quite a lot of attention to [the capacity to engage in grain procurement] in the due diligence [of Joe White]" through Cargill, Inc's existing grain and oilseeds supply chain business, which was anticipated to be 1 of Cargill, Inc's largest possible synergies.

18 This evidence was largely relied upon by the Viterra Parties to establish that some matters of sensitivity in the Confidential Documents concerning Cargill, Inc's decision-making processes have already been the subject of evidence at trial.[17]

B.3 Previous approach to interlocutory applications heard during the trial

19 Since the trial started on 18 June 2018, there have been frequent and continuing interlocutory disputes. During the course of the trial, with respect to issues relating to discovery and inspection alone, up to the time of this rehearing, there have been 34 orders made.[18] Some orders have been either by consent or with minimal opposition, but many have been the subject of contested hearings.

20 With respect to all contested interlocutory hearings, the procedure adopted up until 11 September 2018 was as follows:

(1) The parties filed and served any materials upon which they intended to rely before the hearing.

(2) The parties filed and exchanged written submissions.

(3) The evidence and the written submissions were read by me before the application was heard.

(4) Oral submissions were made (usually outside court hours so as to not interrupt the trial), largely to supplement the written submissions already provided.

(5) The court gave a ruling on the interlocutory application either the same day as the hearing, or the next day.

(6) On occasion, after an oral ruling was given, a party requested revised written reasons.

(7) When requested, written reasons were provided, without interrupting the progress of the trial.

This approach had been embraced by the parties, with the Cargill Parties and the Viterra Parties often briefing separate counsel to appear after hours on the interlocutory applications. Such an approach allowed the trial to continue with as little disruption as possible, in an attempt to deal with the real issues in dispute in a timely and efficient manner.[19]

21 Consistently with this approach, the hearing of the application on 11 September 2018 was held (at 2.00 pm, as the next witness was not available until the following day) after the parties had provided a list of the affidavits upon which they intended to rely, together with substantive written submissions.[20] Also consistent with the previous approach, after leaving the bench for approximately 10 minutes, and after hearing some further brief submissions concerning the form of any confidentiality undertaking, I gave an oral ruling in respect of the application.

22 As at 11 September 2018, all the evidence of all the lay witnesses had been led.[21] Given the relevance of the Confidential Documents to the expert evidence regarding loss or damage, it was critical that the ruling be given promptly so as to not cause significant delay to the conduct of the trial.[22] Ruling No 16 expressly referred to the fact that it was being provided as a matter of urgency.[23]

23 The need to revisit the issue of whether or not Weber should be given access had already caused significant delay to a trial that was scheduled to be completed at the end of November 2018.[24] There is now no prospect of the trial being completed in a time proximate to that schedule.[25]

24 In addition to the general urgency of Ruling No 16, upon the oral ruling being given it was foreshadowed by the Cargill Parties that leave to appeal would be sought. Revised reasons were prepared, which were published at 6.32 pm on Friday, 14 September 2018, in order to give the parties time to consider those reasons over the weekend for the purposes of any application for leave to appeal and the impending stay application in the Court of Appeal.[26]

25 In light of the Cargill Parties' submission that I overlooked relevant matters in Ruling No 16, which was upheld by the majority of the Court of Appeal, I have not adopted my previous approach to interlocutory hearings with respect to this ruling.

26 In the fourth week of trial, after Breszee had completed her evidence,[28] the Cargill Parties filed a summons seeking orders preventing any further disclosure and distribution of the Initial Confidential Documents.[29]

27 The following day, the Viterra Parties filed a summons seeking unredacted copies of the Initial Confidential Documents. The Viterra Parties' summons also sought orders for particular discovery of other documents dealing with substantially the same subject matter as the Initial Confidential Documents. The 2 applications were heard together on 18 July 2018.

28 A ruling was given the following day. The court ordered the Cargill Parties to discover further documents, which now comprise the Confidential Documents.[30] The orders of the court[31] ("the 19 July Orders") included:

By 4:00 pm on 27 July 2018, the Cargill Parties make discovery of:

(1) Any documents recording, forming part of or referring to any valuation prepared since 1 October 2017 in respect of:

(a) the business operated by Cargill Malt Asia Pacific Pty Ltd (formerly Joe White Maltings Pty Ltd) ("the Australian Business");

(b) [Cargill's Malt Business],

including any documents recording the inputs, instructions or assumptions prepared or provided for the purpose of such valuations.

(2) In relation to any proposed disposition of Cargill's Malt Business or part of it since 1 October 2017:

(a) Any information memoranda or any similar documents.

(b) Any offers or proposals, whether formal or informal, made to or from any prospective party.

(c) Presentations to, and minutes of, any meetings of the Food Ingredients & BioIndustrial Platform and the Board of Directors of Cargill, Inc.

29 In providing the reasons as to why the 19 July Orders were made, I found that the Confidential Documents were relevant to Cargill Australia's claim for loss, both on the "left in hands" approach and the Potts v Miller[32] approach.[33] However, these findings of relevance were not exhaustive. The Viterra Parties contended that the Confidential Documents were relevant to whether the addition of Joe White to Cargill's Malt Business was valuable in itself because of the synergies created. Further, the Viterra Parties contended the Confidential Documents were relevant to whether Cargill Australia would have purchased Joe White regardless of any alleged lack of knowledge of the Viterra Practices and the Viterra Policies.[34] I expressly refrained from ruling on whether or not the Confidential Documents were also relevant to these issues.[35]

30 At the time of the hearing on 18 July 2018, the Cargill Parties had filed: a notarised statement of Eric De Munter ("De Munter"), the vice president of Cargill, Inc's corporate strategy and development group; an affidavit of Douglas Ujdur ("Ujdur"), a senior lawyer of the mergers and acquisitions global practice group lead in the Minneapolis offices of Cargill, Inc; an affidavit of a senior lawyer at Cargill, Inc, Brooke Tassoni ("Tassoni"); and an affidavit of Janet Whiting ("Whiting"), the solicitor in charge of the conduct of the Cargill Parties' case in this proceeding.

31 With respect to the evidence then before the court, the statement and each affidavit relied upon by the Cargill Parties were referred to in Ruling No 9. The following was stated:[36]

De Munter's statement was directed towards the [Initial] Confidential Documents, and said those documents contained "only preliminary estimates which are based upon incomplete assumptions and partially-accurate inputs". He contended, therefore, that they were not reliable indicators of the value of Cargill's Malt Business. Further, he attested that release of documents containing Cargill, Inc's preliminary valuation work would significantly impair and prejudice Cargill, Inc's ability to "fairly compete",[37] and would "materially undermine [its] negotiation position with potential counterparties" in any "strategic process". Significantly, however, after seeking to downplay the reliability of the [Initial] Confidential Documents, De Munter stated the information was commercially sensitive because it included margins, historical volumes, detailed input costs and details of strategic projects.

Tassoni's affidavit identified the [Initial] Confidential Documents as the documents referred to by Breszee during her evidence, and referred in particular to the contents of Confidential Document A as "highly confidential and commercially sensitive".

Ujdur's evidence was similarly directed towards the [Initial] Confidential Documents. He stated that the exercise of preparing the [Initial] Confidential Documents had been "preliminary in nature and rested on non-specific cost allocations, limited forecasted numbers and other general, unvalidated assumptions". Ujdur described the Confidential Documents as "high level pulse checks intended only for internal consumption".

Ujdur further stated that the [Initial] Confidential Documents were considered by Cargill, Inc to be highly confidential and highly proprietary. Disclosure of the [Initial] Confidential Documents, especially to Cargill, Inc's competitors, was said to be likely to lead to adverse implications, including by way of third parties being discouraged from transacting with Cargill, Inc in particular ways, or at all. It was further said:

Those companies who are in the same industry may be particularly well-placed to use the information for their own purposes and contrary to the interests of Cargill's [M]alt [B]usiness. I cannot say how they would use the information, but it is almost like a mosaic. Every little piece of information may assist in painting a fuller picture. Moreover, the puzzle pieces of any valuation exercise, even if preliminary, contain commercially-sensitive inputs such as margins, historical volumes and costs, which, if disclosed, could significantly impair and prejudice [Cargill, Inc]'s ability to compete even outside of the malt business.

Shortly before the Discovery Application[38] and the Confidentiality Application[39] came on for hearing, the Viterra Parties filed a short affidavit sworn by [Weber]. In his affidavit, Weber swore that none of the Viterra Parties, including the ultimate parent company Glencore, "own or have any interest in any company that engages in the malting of barley since the sale of Joe White", and that they "possess no plan or present intention to invest in or acquire a malting business".

A short affidavit [of Whiting] filed in response by the Cargill Parties exhibited a number of screenshots of Glencore's website which included information about Glencore's agricultural business and where it operates. Those screenshots demonstrate that Glencore's agricultural business has facilities throughout North and South America, Europe and the east coast of Australia, with offices in those regions and others, including Africa, China, India, Japan, Vietnam, Singapore and South Korea. They also show that Glencore presents itself as a "market leader in originating, handling, processing and marketing agricultural commodities", including barley. However, there was nothing in this evidence that suggested Glencore had any present involvement in malting.

(Original emphasis and footnotes, except for footnotes 38 and 39.)

32 As may be seen from the passage set out above, it was uncontroversial that Glencore had a substantial presence in the processing and marketing of agricultural commodities, including barley, and that the Cargill Parties were concerned about Cargill, Inc's ability to compete both within and outside the malt business should access be granted as sought. This has been common ground throughout the applications concerning the discovery and disclosure of the Confidential Documents.

33 Also in Ruling No 9, it was stated:[40]

Also with respect to the issue of confidentiality, Cargill, Inc and Glencore are not strictly trade rivals. Although they were rivals in the malt business in the past, albeit to a limited extent, and there is a possibility that they will compete in the future with respect to malt, presently Glencore is not in the malt producing industry.

(Emphasis added.)

34 There was no submission by the Cargill Parties on 11 September 2018 that anything contained in that paragraph was incorrect. It reflected the Cargill Parties' focus at the time, which was that a critical factor with respect to access was the extent to which the Cargill Parties and Glencore were both engaged in the malt business, in the context where they were also competitors in the processing and marketing of agricultural commodities, including barley.

35 During the current hearing, the court invited the Cargill Parties to make any submission as to the inaccuracy of any finding in Ruling No 9. No such submission was made during the hearing. However, a note was forwarded after the hearing which raised a number of matters:

(1) In regard to the finding that there was nothing in the evidence to suggest that Glencore had any present involvement in malting,[41] it was stated that the finding was correct, but that extracts from Glencore's website indicated "a present involvement in the malting industry". The relevant extracts stated that Glencore participated "in both malting barley and feed barley" and was a major supplier to "the malting and brewing market in China and across Asia".

(2) It was suggested that the Viterra Parties have formally elected to adopt a particular approach with respect to the assessment of damages by virtue of their instructions to their expert.[42]

(3) The Cargill Parties contended they would be materially prejudiced if the alternative, "left in hands", approach were to be adopted by the Viterra Parties as the appropriate means of assessing any loss of Cargill Australia.[43]

(4) As to the finding that Cargill, Inc and Glencore were not strictly trade rivals,[44] the following was stated:

Since Ruling No 9 was prepared, further evidence has been adduced to the effect that Cargill, Inc and Glencore are trade rivals.

(Original emphasis.)

36 I make the following observations in relation to the points made above:

(1) This observation is trite. The evidence at trial is to the effect that, ordinarily, a major source of business for a barley trader is to sell barley of malt-grade quality (or otherwise) to maltsters.

(2) & (3) These are matters for closing submissions.

(4) Whilst it is correct that further evidence was subsequently adduced, this response does not portray the entire picture. As may be seen from the passage set out above,[45] before Ruling No 9 was delivered there was already evidence before the court as to Glencore's (and Cargill, Inc's) involvement in the barley market. Not only was there evidence to this effect on the application, there had already been evidence at the trial as to aspects of their respective participation in the grain market, including barley.

37 Pursuant to the 19 July Orders, the Cargill Parties provided a list of documents on 27 July 2018. An updated list was provided on 5 August 2018 ("the List of Documents").

38 On 7 August 2018, the court made further orders, as follows ("the 7 August Orders"):

The plaintiff produce for inspection the documents on the [List of Documents], and any other documents discovered pursuant to the [19 July Orders], to:

(1) the external legal representatives (solicitors and counsel) of each of the parties; and

(2) Meredith, Klein and Potter (and those assisting those persons in respect of their expert reports),[47]

upon those persons giving undertakings in the form annexed to these orders, from 7:00 pm on 7 August 2018.

39 The 7 August Orders were made to facilitate access by external legal representatives and the independent experts, on the express basis that the Viterra Parties intended to revisit the issue of access by Glencore's in-house counsel, Weber. That application was duly made on 21 August 2018.

40 In dismissing that application, a number of observations were made in Ruling No 13 that were subsequently referred to by the majority in the Court of Appeal.[48] In particular, in Ruling No 13 it was observed that the Viterra Parties had cross-examined witnesses called on behalf of Cargill Australia with respect to the Confidential Documents without any apparent difficulty.[49] Necessarily, that observation was confined to the cross-examination that had occurred up to that time, coupled with the fact that no relevant evidence as to Weber's role was then before the court. This was made clear in Ruling No 16.[50]

41 Further, reference was made in Ruling No 13 to the extent to which the Cargill Parties and the Viterra Parties already compete in the barley trade and the malt business.[51] As this was expressly referred to in Ruling No 16,[52] and in its entirety by the Court of Appeal,[53] it is reproduced in full:

Although the defendants are not presently in the malting business, they have substantial interests in the grain business in many parts of the world; a business in which the Cargill Parties are also extensively engaged. Further, despite there being no present intention of the defendants to participate in the malting business, there is no guarantee that they will not do so in the future, or that Weber will not participate as inhouse counsel in any such activities. Furthermore, the evidence before the court shows that, not only are Glencore and the Cargill Parties competitors in the barley trade, but that Glencore has been actively involved in the last year in selling maltgrade barley to the Cargill Parties. Moreover, an affidavit sworn by Tina Savona on 21 August 2018 on behalf of the Cargill Parties contended that confidential information regarding the cost of barley purchased by them could be used by Glencore in "an anti-competitive manner" to further its business interests in the barley trade.

(Emphasis added.)

The reference to the affidavit sworn on 21 August 2018 by Tina Savona ("Savona") was a reference to an affidavit filed on the date that application was heard, which initially was provided to the court on a confidential basis.[54] That affidavit stated that the possible sale of Cargill's Malt Business was ongoing and made reference to the Confidential Documents containing information that was confidential either to Cargill, Inc itself or to Cargill, Inc together with third parties.[55] It was stated that the Confidential Documents included information that would not usually be available to potential buyers and "would undermine Cargill's bargaining position" in respect of the Proposed Disposition.

42 Further, in paragraphs 19 to 22 of the affidavit, Savona gave evidence about both Glencore and Cargill, Inc being competitors as barley traders.[56] That affidavit stated that the Confidential Documents included information regarding the cost of barley.

43 In addition, Savona made reference to purchases made by Cargill's Malt Business from Glencore in the previous year. Savona expressed the belief that "[t]o the extent that Cargill purchases barley from Glencore in the future", awareness of information concerning barley costs would put Glencore at an unfair advantage in relation to such transactions.[57]

44 Finally, Savona deposed that she was informed by De Munter that Glencore was likely to have merger or acquisition targets in common with Cargill, Inc which were active in sectors in which both Glencore and Cargill, Inc operate, including in agricultural commodities. It was suggested that disclosure of this information would adversely affect Cargill, Inc's strategic position.

45 Returning to Ruling No 13, observations were made about the sensitivity of the Confidential Documents. In that context, it was stated that they were "highly confidential". Further, reference was made to the interests of third parties.[58] Those observations were referring to evidence of Savona to the effect that some of the information contained in the Confidential Documents was the subject of non-disclosure agreements. Savona also gave hearsay evidence that disclosure would "jeopardise Cargill's relationship with those [third] parties and would have the effect of making those parties disinclined to continue to participate in the sale process".

46 Next, Ruling No 13 referred to the criticality of the Viterra Parties choosing not to file any substantive evidence in support of the application.[59] Notwithstanding previous invitations by the Cargill Parties for the Viterra Parties to put on evidence specifically identifying the reasons why access was required, the Viterra Parties had declined to act upon the invitation. Weber had filed an affidavit in support of access on 18 July 2018, but that affidavit was confined to evidence of Glencore's involvement (or lack thereof) in the malting of barley since the sale of Joe White. It said nothing about Weber's role at Glencore, or with respect to this proceeding, beyond stating he was group counsel of Glencore.[60]

47 It was in the absence of any probative relevant evidence, despite there having been a full opportunity to put it before the court,[61] that the observation was made about the relative ability of the external lawyers to deal with the matter.[62] The inference that had been open to the court at that time necessarily dissipated once Weber put on evidence that clearly distinguished his positon from that of the external lawyers of the Viterra Parties.[63] It then became a matter of the court assessing that evidence, rather than drawing reasonable inferences based on an absence of evidence.

48 The criticality of the absence of evidence was also emphasised in the conclusion to Ruling No 13. Reference was made to the "limited material presently before the court" (emphasis added).[64] It was specifically stated that Ruling No 13 ought not be treated as a final ruling. It was stated that, if the Viterra Parties were able to demonstrate a substantive need for access to the Confidential Documents, that matter would be addressed by the court upon an application being made.[65]

49 Accordingly, each of the observations in Ruling No 13, made in the context where no evidence was put before the court on behalf of Weber as to his role, needs to be understood on the basis that the court contemplated there may be circumstances in which access to Weber might be appropriate. In this regard, it was expressly noted that the onus lay on the Cargill Parties to demonstrate the appropriateness of any restrictions sought to be imposed.[66] In so doing, reference was made to a number of cases, including Astrazeneca AB v Medis Pharma Pty Ltd[67] and Alphapharm Pty Ltd v Lundbek Australia Pty Ltd,[68] both of which were the subject of extensive consideration by Whelan JA in the Appeal Reasons.[69]

50 As with Ruling No 9, when an enquiry was made by me during the current hearing, the Cargill Parties declined to make any submission about the incorrectness of any finding in Ruling No 13.[70] Further, contrary to their previous position,[71] the Viterra Parties submitted on this application that the approach in Ruling No 13 was correct as a matter of principle.

51 The urgency pertaining to Ruling No 16 has already been addressed.[72]

52 The structure of the reasons in Ruling No 16 is reflective of the manner in which the application was handled. Paragraphs 13 to 20 reflect the reasons I gave orally at the end of the hearing.[73] The other paragraphs in Ruling No 16 before and after these paragraphs supplemented the oral reasons given on 11 September 2018.

53 The first substantive matter dealt with was the question of whether Weber should be granted access to facilitate settlement. It was noted that this had not previously been referred to as a reason why access was necessary.[74] I concluded on this issue by stating:[75]

In these circumstances, Weber should be given access to [the Confidential 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.[76]

Nothing in this passage addressed whether or not Weber had authority to settle the proceeding. The observation about external lawyers not having instructions was made in circumstances where the evidence was that it was Weber, himself, who has represented Glencore, has given instructions to external lawyers from the outset of the proceeding and has been the sole person giving instructions to Glencore's solicitors.

54 The second matter referred to in Ruling No 16 was an application made by the Cargill Parties to confine the operation of the 19 July Orders. In that regard, it was observed that if the Viterra Parties were to agree to confining the 19 July Orders they would be "giving away a vested right" to documents required to be discovered pursuant to those orders. It was further noted that the Viterra Parties' external lawyers were entitled to take instructions before acceding to any limitation.[77]

55 Contrary to the Cargill Parties' submissions on appeal, the reference to a vested right could only sensibly be understood as referring to the right that had come into existence by reason of the 19 July Orders. Leaving aside the fact that in the Commercial Court there is no absolute entitlement to discovery,[78] but in the context of this case, where the parties have not been entitled to make any application for discovery without leave since orders were made to that effect on 5 October 2017,[79] a reference to such a right could not sensibly be understood to go beyond the rights created by the 19 July Orders.[80]

56 Relevantly on the issue of narrowing the 19 July Orders, Weber gave evidence that he could not give any instructions to agree to any truncation or curtailment of the Cargill Parties' continuing obligation to give discovery without access to the Confidential Documents.

57 The third matter referred to in Ruling No 16 was the fact that the Cargill Parties had tendered some of the Confidential Documents in their case, despite having previously argued that the documents were not relevant to any issue in the proceeding.[81] It was stated that, in circumstances where the loss or damage experts were also being provided with the Confidential Documents, Weber ought to be entitled to review those documents and give instructions.

58 This finding was made in circumstances where Weber had given unchallenged evidence, which was not before the court at the time of Ruling No 13, concerning his active involvement in forensic judgments and litigation strategy on behalf of Glencore, armed with his knowledge and experience at Glencore, as follows:

The forensic judgments and litigation strategy advanced by and on behalf of Glencore in this proceeding is the product of active collaboration and discussion between me, on behalf of Glencore, and the external legal representatives. That process has broken down with respect to the loss and damages and causation elements of the Cargill Parties' claims. The sale of the Cargill Parties' global malt business is relevant to the question of loss and damages and causation and, for that reason, it is necessary that I be able to have meaningful discussions about it. This is because I am unable to engage in any meaningful discussion, contrary to what has ordinarily occurred, with respect to the sale of the Cargill Parties' global malt business and the use of the information set forth therein in relation to matters of loss and damages and causation (and, more particularly, to the valuation of the global malt business), in aid of the defence of the claims made by the Cargill Parties in these proceedings.

...

By reason of my knowledge and experience at Glencore, I have historical, institutional, and transactional knowledge which may bear upon the matters raised by those documents, the nature and extent of the discovery given, and the forensic and strategic approach Glencore might take in relation to the loss and damages and causation elements. As far as I am aware, [the Viterra Parties' solicitors] and counsel are making good faith efforts to advance the interests of Glencore to the best of their ability, but they do not know what they do not know. I cannot tell them what they do not know, and confer and exchange views, because I am unable to review these documents, and [the Viterra Parties' solicitors] is prohibited from discussing any aspect of them with me, by order of the Court.

(Emphasis added.)

59 The fourth matter referred to was the fact that Weber had gone on oath to explain why access to the Confidential Documents was sought, coupled with the fact that he offered to give a confidentiality undertaking to the court.[82] Neither of these matters had previously occurred.[83]

60 Finally, reference was made to the fact that the Cargill Parties had made an open offer for another in-house counsel, Damien Fitzgerald ("Fitzgerald") to have access to the Confidential Documents upon giving a confidentiality undertaking instead of Weber.[84]

Having referred to these 5 matters, I then stated "in the exercise of the court's discretion in balancing the relevant factors" (emphasis added), Weber would be allowed access to the Confidential Documents.[85] I also expressed the view that any one of the first 3 matters referred to "would be sufficient to outweigh the competing factors" (emphasis added).[86] As is apparent from the language used, there was no attempt to expressly or exhaustively identify all of the "relevant factors" or "competing factors" that had been taken to account in the balancing exercise involved. Indeed, nowhere in Ruling No 16 was there any attempt to do so.[87] Given that all relevant matters had been drawn to my attention immediately before giving the ruling, I considered it unnecessary to descend to this level of detail, particularly given the urgency of the matter.[88]

C.4.1 Parties' submissions on this application

62 Both the Cargill Parties and the Viterra Parties disavowed matters attributed to their submissions by the majority in the Appeal Reasons. It is necessary to address these matters to avoid the appearance of inconsistency between the position of the parties before me[89] and before the Court of Appeal, and to ensure there is no risk of confusion should this application again be the subject of an application for leave to appeal.

63 The Viterra Parties took exception to the majority suggesting that they had conceded that Weber "did not have authority to make or accept offers of settlement and that his role in relation to any settlement was to give advice and make recommendations to those with such authority".[90] They submitted that no such concession had ever been made. To make good the submission, reference was made to the transcript of the hearing before the Court of Appeal, as follows:

KYROU JA: ... In other words, if [Weber] performs only a lawyer's role of giving advice and the real decision-makers are the executives in the organisation, do we extend this argument of yours and say, "Well, the [chief executive officer] needs to have these documents too because how could he be expected or she be expected to make a decision on offer", because the last sentence in the judge's paragraph 15 [or Ruling No 16] says, "Naturally, external lawyers are not in a position to advance such matters without instructions". Well, why can't that be said about Weber? When he's talking to his commercial people?

MR MYERS: Let me answer the question this way, Your Honour.

KYROU JA: Sure.

MR MYERS: There's no doubt that Mr Weber doesn't have authority to settle this matter at any level. No one would contend that and I don't [know] whether the [chief executive officer] of Glencore would have that authority without a board resolution either. The claim is for hundreds of millions. I think it's $300 million or thereabouts. But Mr Weber is the man who Glencore entrust with authority to negotiate and entrusts him ---

KYROU JA: Sorry, where do you get that from? Authority to negotiate.

MR MYERS: Because he has, as appears from paragraphs 18 and following [of Weber's affidavit sworn 30 August 2018], the general conduct of the litigation.

KYROU JA: Yes, but what does that mean?

MR MYERS: Well, he's the person on behalf of Glencore who is responsible for the conveying of instructions in the litigation.

KYROU JA: Conveying instructions, yes. But you said ---

MR MYERS: Well, conveying either ---

...

MR MYERS: No, either by his own authority and we don't know what the limits of his authority are. They're not stated in that affidavit and probably they aren't precisely framed either. There's probably not a document which says, you know, "You can do this, you can do that and you can do something else". But he's the person who's looking after the litigation.

KYROU JA: Yes.

MR MYERS: And he's the person who's given instructions to the solicitors and with the solicitors giving instructions to counsel.

KYROU JA: Yes.

MR MYERS: So he has that role. There have been 2 - at least 2 because I've participated in 2 and the papers filed in court would show it - court-ordered mediations.

KYROU JA: Yes.

MR MYERS: And Mr Weber is the representative of Glencore in the litigation and hence in relation to negotiations. He has authority to negotiate but not ---

DR BUTTON: Sorry to interrupt my learned friend. But there's no evidence of who attended these mediations and we'd say there's also without prejudice issues concerning further discussion of what occurred at these mediations.

KYROU JA: Yes, I picked you up on the word "negotiate" as distinct from handle day-to-day routine matters because negotiate suggests making offers and responding to offers, which I thought you had said that he doesn't [have] such authority.

MR MYERS: Well, if an offer's made ---

KYROU JA: Yes.

MR MYERS: --- then if he doesn't have the authority, then he rings someone up and says, "Do I have authority to accept that?"

KYROU JA: Yes, but my point to you is why can't you do that? You being the external lawyer. If all it is seeking authority from the real decision-makers, why do you need to interpose another lawyer who's quite different from a locally admitted lawyer - which is another issue - as part of the train of communication?

MR MYERS: Because Mr Weber's the person whom Glencore trust. They don't know me.

KYROU JA: Yes, but ---

MR MYERS: They trust someone.

KYROU JA: Very well.

MR MYERS: This is why he's the person in charge.

(Emphasis added.)

64 In light of the exchange referred to above, on this rehearing of the application the Viterra Parties submitted that the Court of Appeal had not been informed that Weber did not have any authority to settle the proceeding. Further, the Viterra Parties stated they informed the Court of Appeal that there would be limits to Weber's authority to settle, but those limits were not disclosed. It was contended before me that this is quite different to a purported concession that he had no authority at all to make or accept offers. The Cargill Parties made no competing submission as to the effect of the exchange in the Court of Appeal referred to above. Moreover, the Cargill Parties said they accepted the Viterra Parties' position with respect to Weber's authority regarding settlement.[91]

65 As for the Cargill Parties, the majority of the Court of Appeal stated that the Cargill Parties submitted on the application for leave to appeal that "there was no factual basis for the judge's conclusion that [Weber] was in a different position to external lawyers in relation to the assessment of, and the provision of advice about, settlement".[92] Before me, the Cargill Parties stated that they had not made such a submission to the Court of Appeal. I was referred to the transcript in which a proposition put to the Cargill Parties' counsel was acceded to on the "hypothesis" that had been put to her, rather than being based on the facts of the case.[93] The hypothesis put forward by Kyrou JA was:

If he's really in the position of a lawyer, in a traditional way, then what does [Weber] add to the external lawyers? Why would he be in a better position than the external lawyers to make recommendations to those who make decisions?

Kyrou JA then put forward the proposition that Weber was "in a different position to the external lawyers, because he's not an officer of this court" (emphasis added).[94]

66 In contrast to this hypothesis, the Cargill Parties submitted to the court on 11 September 2018 that Weber was very close to the "commercial heart" of Glencore,[95] demonstrated by the fact that he was able to swear about matters concerning its business without obtaining that information from another source.[96] Further, reference was made on 11 September 2018 to the evidence of Weber to the effect that he had reviewed virtually all of the discovered documents, which, the Cargill Parties suggested, would involve a review of over 50,000 documents.

67 Leaving aside Weber's extensive experience at Glencore, to which I refer below,[97] the first of these matters alone, put forward as part of the Cargill Parties' position as to why Weber should not get access, readily distinguished the position of Weber from that of any external lawyers. Further, there was no evidence to suggest any of the external lawyers had personally undertaken such a "Herculean task"[98] with respect to inspection.

68 Furthermore, the Court of Appeal was informed, as is the fact, that Weber has been in court for a substantial part of the trial.[99] This position can be contrasted with many of the external lawyers, who only appear from time to time, depending on what issues are being addressed.[100]

69 At the rehearing of this application, the Cargill Parties again did not suggest that there was no factual basis for concluding that Weber was in a different position to external lawyers concerning settlement; on the contrary, consistent with their earlier approach, a number of distinguishing features were relied upon in seeking to demonstrate why it was inappropriate for Weber to have access.[101] Further, based on Weber's evidence, it was acknowledged that, as the person representing Glencore in conducting this proceeding, Weber was likely to be more influential than external lawyers.[102] Shortly thereafter, the Cargill Parties submitted Weber "must" be in a different position to the external lawyers. The Cargill Parties further stated "it cannot be argued there isn't a difference".

70 Having embarked upon a consideration of the Appeal Reasons in response to the submissions made on this rehearing, it is appropriate to respond to various other observations to avoid any suggestion that all relevant or potentially relevant matters have not been taken into account.[103] Broadly, I will deal with these matters in the order in which they appear in the Appeal Reasons.

71 It was found that, in Ruling No 16, I failed to refer to evidence about trade rivalry in the barley business between the Viterra Parties and the Cargill Parties.[104] There are at least 3 responses to this. First, Ruling No 16 did not purport to exhaustively state each of the matters that had been taken into account.[105] Secondly, and in any event, the relevant evidence was referred to at footnote 31.[106] Thirdly, and further to the second point, the evidence of Weber stating that he did not deal "at all" with "the matters referred to" in "evidence previously led by the Cargill Parties" was referred to at footnote 32. That evidence to which Weber was responding was the very evidence concerned with rivalry with respect to barley trading (and merger and acquisitions targets in the future).

72 The majority suggested that the likely inference was that I overlooked the existing trade rivalry in barley in the exercise of my discretion.[107] As a matter of fact, I did not.[108] The parties were informed of this fact during the course of the rehearing of this application. Leaving aside footnotes 31 and 32 of Ruling No 16, the transcript on 11 September 2018 shows that, in the hearing conducted immediately before I gave Ruling No 16 orally (unrevised), reference was made to the parties' involvement in grain or barley 11 times.[109] Further, after the Cargill Parties indicated they would seek a stay with respect to the proposed orders for access and sought formal reasons, and before Ruling No 16 was delivered, I re-read the Cargill Parties' written submissions to ensure every matter raised on the application was expressly referred to in Ruling No 16. Savona's affidavit sworn 21 August 2018 was referred to in those submissions.[110] More importantly, Glencore's involvement in grain was expressly referred to 4 times.[111]

73 In drawing the inference that the evidence of existing trade rivalry in barley had been overlooked, the majority stated that it was of "such potential significance that it would be expected that the judge would have addressed the matter directly rather than inferentially".[112] In this regard, I repeat what is stated in the previous paragraph. It was a fact about which there was no controversy. Further, in Weber's affidavit sworn 30 August 2018 he stated that transactions involving grain were handled by Glencore's in-house legal staff based in Rotterdam, the Netherlands, and were "not dealt with by [Weber] at all" (emphasis added). This evidence was given in direct response to Savona's evidence on the topic.[113] Furthermore, this evidence of Weber dealt directly with the issue of trade rivalry insofar as it concerned barley (and, for completeness, any future acquisitions with respect to sectors involving agricultural commodities). In short, the matter had been dealt with directly in the uncontroverted evidence. That evidence was no less probative by reason of Weber's further evidence that he was not involved in "those day-to-day matters" and did not personally engage in "day-to-day trading" or legal work for day-to-day grain transactions.[114]

74 With respect to the "potential competitive rivalry between Cargill, Inc and Glencore in relation to future agricultural acquisitions", it is correct that no reference was made to that point in either Ruling No 13 or Ruling No 16.[115] As may be seen from the previous paragraph, it was squarely addressed by Weber with respect to his possible future involvement. Further, although this issue was referred to in very broad terms in the evidence, it was given virtually no attention in submissions. In my view, this is not surprising in circumstances where I had direct evidence of actual rivalry, and this issue was only concerned with the mere possibility of competitive rivalry in the future. Furthermore, Weber swore, without being challenged, that he would not have any involvement in relation to any potential agricultural acquisitions.

75 In these circumstances, although the Cargill Parties' evidence of this "potential" rivalry was before the court, and was read by me in preparation for the hearing, it appeared to be of little weight in the balancing exercise with which I was required to engage. To reiterate, for reasons explained,[116] neither Ruling No 13 nor Ruling No 16 purported to exhaustively set out all of the relevant factors in the exercise of the court's discretion.

76 The majority stated that the status of the parties as current trade rivals was a factor that weighed in the balance against the matters favouring disclosure which were referred to in Ruling No 16, including the first 3 fundamental differences referred to in that ruling when comparing it with Ruling No 13.[117] That reflects the view that I held at the time Ruling No 16 was delivered.[118] There was no suggestion otherwise; on the contrary, although not individually specified, all relevant or competing factors were referred to when deciding in favour of granting access.[119]

77 Moving to another issue, the majority referred to my conclusion that the difficulties associated with Weber being located outside the jurisdiction and the absence of an undertaking as to damages were not sufficient to deny Weber access to the Confidential Documents. The majority stated this "was based on the fact that the [Viterra Parties] will remain subject to the jurisdiction of the court for the foreseeable future and have significant assets in Australia".[120] It was further stated I did not address the difficulty that the Viterra Parties cannot be liable for a breach of Weber's Undertaking simply because they remain subject to the jurisdiction of the court and have assets in Australia.[121] Then, after referring to the possibility that it may not be able to be shown that the Viterra Parties have some relevant connection to any future breach by Weber, the majority concluded:[122]

In our opinion, the fact that the judge did not take account of the limitations on the availability of sanctions against the [Viterra Parties] if [Weber] were to breach his undertaking means that a material consideration was not taken into account.

78 This conclusion appears to misunderstand the purpose and scope of what was stated in Ruling No 16 with respect to Weber's location. It was expressly stated that the fact that Weber was out of the jurisdiction "continues to be a relevant factor",[123] ergo recognising possible limitations upon the availability of sanctions against Weber, whether any potential breach was "inadvertent or otherwise".[124] Further, the reference to the Viterra Parties having assets within the jurisdiction, and being subject to the jurisdiction of the court, was made in circumstances where the Cargill Parties submitted that there was "practically speaking, nothing" the court could do if there were a breach,[125] and that Weber had some material involvement in the barley sector meaning there might be an incentive or opportunity for the Viterra Parties, or, more specifically, Weber acting in the perceived interests of the Viterra Parties, to breach Weber's Undertaking.

79 Another issue addressed was Weber's authority with respect to settlement, which has already been discussed above.[126] Related to this issue was evidence given by David Mattiske ("Mattiske"), who was, at relevant times, the managing director of Glencore Grain Pty Ltd in Australia and New Zealand. In Ruling No 16, it was noted that Mattiske had given evidence that the Viterra Parties had "offered Cargill money" to settle the proceeding. That evidence was relied upon for no more than the proposition that "settlement has been attempted" in the past.[127] Naturally, the details of any settlement discussions were not disclosed to the court. It was the mere fact that there had been some discussions in which an offer, no matter how trifling, had been put that made the evidence relevant to the application.[128] In any event, as no reliance has been placed upon this evidence on the further hearing of this application, I say nothing further on the issue.

80 The majority stated that it emerged during oral argument before the Court of Appeal that "Weber lacked authority to make or accept offers of settlement".[129] As already noted,[130] the Viterra Parties do not accept that this did in fact emerge. In any event, the Court of Appeal continued:[131]

This exposed an important factual issue which the judge did not explore.

The decision whether or not to explore an issue not ventilated by the parties on a contested application is a matter a trial judge is required to make from time to time. It is not apparent to me, given I had very experienced counsel appearing for the parties, why there was any need for the court to go beyond the evidence and submissions put. Further, as raised on this rehearing of the application,[132] any such exploration would have been likely to have encroached upon areas of legal privilege.

81 The majority said it was unclear whether the "implicit finding" that it was necessary for Weber to have access to the Confidential Documents for settlement purposes and to give instructions was based on the premise that Weber had authority to give such instructions.[133] Then it was said:[134]

As there was no evidentiary foundation for that premise, in so far as the implicit finding was based on it, it could not be supported.

In Ruling No 16, I made no finding about the extent of Weber's authority regarding settlement. The absence of such a finding was in circumstances where the matter had not been raised before me at all, and there was no evidence upon which I could make any such finding which would be soundly based. No such finding was necessary in order to distinguish Weber's position from those of the external lawyers.[135]

82 The majority suggested there had been a failure to address why Weber was in a better position than the Viterra Parties' external lawyers to give advice and make recommendations about settlement.[136] This issue has already been largely addressed.[137] In Ruling No 13, there was no suggestion that the Confidential Documents might be used for the purposes of settlement.[138] Although settlement is always "a live matter in any commercial dispute",[139] the contrast between what confronted the court at the time of Ruling No 13, when compared with Ruling No 16, was that Weber, ultimately, had gone on oath on the issue as to its significance. Previously, not only had he not given evidence on this matter, but the issue of the Confidential Documents being used for the purposes of settlement was not even raised. Further, in circumstances where Weber was, and remains, in-house counsel at Glencore, a position he has held for many years, he has had responsibility for the conduct of the case from the outset and he has been very hands-on in this role,[140] the different, and better, position of Weber appeared to be readily apparent on the evidence before the court on 11 September 2018.

83 Similarly, the majority suggested it was not clear why I departed in Ruling No 16 from the finding I made in Ruling No 13 that the Viterra Parties' external lawyers and experts ought to be in as good, if not a better, position than Weber to identify the issues relevant to the proceeding and to adduce evidence on the question of any loss Cargill Australia might have suffered.[141] As already explained,[142] the "departing" from Ruling No 13 was based on the direct evidence of Weber on matters relevant to his role, which had not previously been put before the court.

84 The majority suggested the provision of the Confidential Documents to Weber "may simply have added another individual to the chain of lawyers giving advice and recommendations regarding settlement".[143] It is unclear who was being referred to as the "chain of lawyers". There was no evidence before the court, either on the previous occasion, or now, as to which, or how many, of the external lawyers with access to the Confidential Documents are engaged in giving advice and recommendations regarding settlement. Moreover, the conclusion that Weber was in an entirely different position from the Viterra Parties' external lawyers "because he was a senior employee of a trade rival and his confidentiality undertaking was less efficacious"[144] (emphasis added) appears to ignore the numerous other matters distinguishing Weber from the external lawyers that were the subject of evidence on the last occasion.

85 For completeness, the majority agreed with the Cargill Parties' submission that their open offer in relation to Fitzgerald could not be construed as any form of concession in relation to Weber.[145] No such finding was made in Ruling No 16.[146] However, the fact that the offer concerning access by Fitzgerald was made was a clearly distinguishing feature to the previously implacable opposition of the Cargill Parties to any access being granted to the Confidential Documents by any employee or officer of the Viterra Parties.[147]

86 Finally, with respect to the interests of third parties, the majority referred to a regime for the identification and management of documents containing information confidential to third parties. On 11 September 2018, the Cargill Parties agreed that regime was appropriate if, contrary to their primary position, Weber were to be granted access. This was referred to by the majority as the "agreed third party confidentiality regime".[148] On this rehearing, the Viterra Parties' senior counsel stated that there was not, and had not been, any agreed third party confidentiality regime between the parties, and that the proposed regime was only proffered by the Viterra Parties in the event that their application for Weber to have unqualified access (subject to the Weber's Undertaking) was unsuccessful.

87 In fairness, based on what the court was told, it was far from clear on 11 September 2018 that the Viterra Parties and the Cargill Parties had not reached an agreement with respect to information in the Confidential Documents that was confidential to third parties.[149] Moreover, the proposed regime was set out in the Viterra Parties' written submissions without any alternative submission or conditionality suggested.

D. Evidence and materials relied upon on this application

88 A total of 19 affidavits and a written statement have been relied upon by the parties to this application. In addition to the evidence relied upon previously, the Cargill Parties proffered a further affidavit of Whiting, sworn 18 October 2018, and an affidavit of De Munter, sworn 17 October 2018. As for the Viterra Parties, 3 further affidavits were filed, sworn by Weber on 16 October 2018, affirmed by Zoe Justice ("Justice") on 16 October 2018 and sworn by Sarah Weinberg ("Weinberg") on 22 October 2018.

89 Dealing with these in reverse order, by the Weinberg affidavit, evidence was led that the "Viterra consolidated group" held net assets by its Australian holding company, Viterra Holdings Pty Ltd ("Viterra Holdings") as at 30 September 2018 of in excess of $950 million, and that, shortly before the affidavit was sworn, there had been no material difference to the estimated value of those net assets.

90 The affidavit of Justice exhibited an article, published in The Australian newspaper on 11 October 2018, entitled "Graincorp set to swallow Cargill whole". This article gave some purported details of the "sales process for Cargill's global malt business".

91 Weber's affidavit sworn 16 October 2018 provided further evidence concerning Weber's role in relation to settlement of this proceeding. In that regard, he swore that he was authorised by 2 senior executives of Glencore, on behalf of all the Viterra Parties, to engage in any and all discussions or negotiations with a view to narrowing issues in dispute "and within certain prescribed parameters, compromising, making or accepting an offer to settle this proceeding in whole or in part". Weber stated, not surprisingly, that those parameters were confidential and privileged.

92 Weber further stated that the criteria for considering any settlement would not be considered exclusively by reference to assessing the "legal and/or forensic strengths and weaknesses" of the issues in the proceeding. As a result, he stated that the external legal representatives of the Viterra Parties could not, themselves, give advice about the broader commercial and strategic aspects of the interests of the Viterra Parties. Furthermore, he noted that none of them were authorised to compromise, make or accept any offer to settle this proceeding in whole or in part.

93 In the circumstances, Weber expressed the belief that he would be required to give informed input, consider legal and forensic advice and broader strategic commercial aspects of the interests of the Viterra Parties, and provide a comprehensive briefing addressing all aspects affecting the Viterra Parties' interests, in assessing any settlement proposals.

94 Weber also gave evidence that he was uniquely placed in being able to perform this role. He was involved in the sale of Joe White to Cargill Australia in 2013, is familiar with the history of the proceeding, "including all of the relevant facts and circumstances and issues in dispute and having provided instructions to [the Viterra Parties' solicitors] at all relevant times in respect of this proceeding".

95 In support of his belief, Weber also referred to his understanding of the commercial environment and industries in which the Viterra Parties carry on the respective businesses, including how acquisitions and divestitures of investments and assets occur within Glencore's global business and, amongst other things, his knowledge of the commercial and strategic objectives and priorities of the Viterra Parties respectively. Further, Weber referred to his 2 decades worth of experience and knowledge in reviewing and assessing all relevant aspects of commercial transactions involving acquisitions and divestitures, including consideration of valuation issues and models, and analyses relating to acquisitions and divestitures by Glencore and its affiliates.

96 Further, Weber deposed that he was authorised to give an undertaking as to damages on behalf of each of the Viterra Parties as a condition of access to the Confidential Documents being granted to him. Accordingly, in the event Weber were to breach Weber's Undertaking given to the court, the Cargill Parties would have a claim for damages against the Viterra Parties, regardless of whether they were at fault. He also gave evidence relating to the assets of Viterra Holdings located in Australia, which included assets held by all the Viterra Parties except Glencore.

97 Upon the Viterra Parties indicating that they intended to rely upon the affidavit of Weber sworn 16 October 2018, the Cargill Parties sought leave to cross-examine him.[150] That application was opposed by the Viterra Parties. After hearing argument, leave was granted on the basis that the reasons for that leave would form part of this ruling. Those reasons are now no longer necessary.[151]

98 Initially, the Cargill Parties sought to cross-examine on 6 topics, which included the issue of the authority of Weber to settle the proceeding. However, after the Cargill Parties' senior counsel had heard the Viterra Parties' submissions on this topic, he indicated that the Cargill Parties did not need to press that topic at all.

99 Accordingly, leave was initially granted with respect to 5 topics, namely: the extent of the trade rivalry between the respective parties; the strategic approach of Glencore to acquisitions; the role of Weber and whether it was critical for him to have access to the Confidential Documents; the extent to which Weber might be the subject of any sanctions either in Switzerland or in New York for any misconduct; and the question of why Weber had allowed his registration as an attorney of the New York Supreme Court to lapse. Having made this ruling, the Cargill Parties then applied to cross-examine about Weber's need to be involved in the application of the Cargill Parties to narrow the 19 July Orders. Leave was also granted with respect to this topic as well.

100 Weber was cross-examined extensively. He was an impressive witness.[152]

101 Weber was asked about his background generally.[153] He gave evidence that he never practised as an attorney in California, but practised for about 12 years in New York until joining Glencore in 2008. Since that time, Weber has been based in Switzerland. Weber said his registration as an attorney in New York was not renewed only by reason of oversight.[154]

102 In each of Weber's affidavits, he described himself as group counsel of Glencore. When he was asked if his title was "deputy general counsel", Weber said titles were not used at Glencore.[155] Weber said there were 6 or 7 people who worked in his legal department, and informally he was probably the second or third most senior. He said the most senior person in his legal department was known as "general counsel" and everyone in that department "just works for him".

103 Most of Weber's experience as in-house counsel for Glencore has involved Glencore's activities in the metals and minerals industries. Weber gave evidence that he has very limited knowledge of the grain industry. He acknowledged he had some familiarity with the Viterra Group's agricultural activities because of Glencore's acquisition of the Viterra Group, but noted that had occurred more than 5 years ago.

104 Given that he has more than a decade working with Glencore, and over 12 years in private practice before that time, Weber expressed the view that he was a lawyer with very substantial experience in commercial transactions. He said that in the last 20 or so years he had reviewed documents relating to sales "often enough" to understand what documents of that type mean and anticipated that he would be able to assess the Confidential Documents in a way that they needed to be assessed for the purposes of this proceeding.

105 As to Weber's role as in-house at Glencore, he swore that he did not get involved in decisions about whether or not to buy or sell something, but rather he had a role when there was a requirement to "execute and document" a transaction. Ordinarily, such a role would include Weber performing due diligence and assessing risk.

106 Weber flatly rejected a suggestion put to him in cross-examination that he participated in making decisions about whether a particular acquisition should be made or a particular asset should be sold. In that regard he said:

[I]t's my job to execute the transaction, to basically negotiate a sale document, to do due diligence, all the same activities that we've been discussing in this courtroom that occurred in relation to Joe White. During the course of that process it's my job to read the documents, to understand the business and to flag issues and risks and to raise those issues with the commercial people and in essence put to them whether they still want the business in light of X or Y or Z.

In the same vein, Weber said that if the risks raised were too large or had not been anticipated, it was not his decision but the "commercial person's" decision to either advance with the transaction or not.

107 Although not a commercial decision-maker, Weber accepted that it was possible that, when performing his role as in-house counsel, he might get involved in commercial discussions. He said his role was primarily to be a lawyer and to raise risks, but if he were asked for his view on a commercial matter, he would give it. He said this did not happen very often and it was a secondary function.

108 Weber also said he only volunteered opinions in areas where it was expected and not otherwise. He said, at Glencore, people are expected to be experts in their field and not to be a jack of all trades.

109 Weber gave evidence that he considered it vital he had access to the Confidential Documents because he was the person at Glencore responsible for defending the litigation, coupled with the fact that he had knowledge of the commercial and strategic objectives and priorities of Glencore. Weber said his knowledge was based on access to information and his experience, together with other aspects of his background, that were brought to bear on the issues that the external lawyers in the case did not have.

110 When asked whether he had confidence in the external lawyers retained, Weber said that, generally speaking, he did. Further, although he said he did not lack confidence in them, he said the external lawyers were advisers, not principals, and that they were required to have informed instructions. He said they were not in a position to make substantive decisions without discussing the matter with their client and obtaining their client's approval.

111 Weber said for the purposes of the external lawyers and this litigation, he was the client. He stated that he was presently unable to perform his role with respect to assessing issues of loss and causation as he was unable to see all of the evidence on the issue, or all the information that pertained to the amount of any damages to be awarded, or all the reasons why it was being alleged that those damages were properly claimed.

112 Weber said that if access were granted to the Confidential Documents, he would then review them. Having done this, he said he would provide feedback for Glencore's solicitors, who would then provide input to the experts. He said, with respect to existing confidential documents that he had reviewed after the giving of a confidentiality undertaking, that some of the decisions on how to use the information in those documents were made by external lawyers and some by him before the documents were then put to use in the litigation. He said that, without reviewing the Confidential Documents, he was not able to be more precise about what instructions he would give after reviewing those documents.[156]

113 Weber said access was required because he wanted to ensure that the Confidential Documents were being put to their highest and best use in the defence of the claims in the proceeding, and he could not know whether that was occurring until he had reviewed them himself. Weber rejected any suggestion that the external lawyers could carry out that role. By reference to his different background and experience, including his knowledge of Glencore, he said he was in a materially different position to the external lawyers.[157] Further, by way of example, he suggested that if an investment banker were to review the information in the Confidential Documents that person "might have a different view about what it says". In addition, he said he was confident that, in light of previous discussions concerning other confidential documents with the external lawyers, he would personally be able to add a different perspective to the discussion.

114 Weber also asserted he had a right to see the Confidential Documents. He said he was the only person in Glencore who was across all of the detail in the case. He said in circumstances where the court has held that the Confidential Documents were relevant, he should have access as he was the "client" and it was the client who would be responsible for any loss that might be awarded. Accordingly, he asserted that, as a matter of due process, he ought to be able to see the Confidential Documents.

115 When it was put to Weber that he was "the human embodiment of Glencore" for the purposes of the proceeding, Weber did not reject this but distinguished himself from others in Glencore who could, in theory, misuse the confidential information. He said there was no crossover between these 2 concepts.

116 With respect to the handling of confidential information between large corporations, Weber agreed that, in commercial transactions or when dealing with regulatory issues, there were occasions where a "clean team" (also referred to as a "clean room" or an "information screen") would be established to keep a potential buyer or competitor away from commercially sensitive information. He also accepted there were good commercial reasons for such an approach, but said that in the past he had always been "on the clean team", not off it.

117 Further, he volunteered that if he were excluded from the clean team in this case, it would be the first time in his career.[158] He said that, in his experience, excluding someone like himself, who was a person not involved in making commercial decisions, did not make any sense. Furthermore, Weber stated there was no other reason for him to obtain the information other than to defend the claims made in this proceeding.[159]

118 Weber readily acknowledged that, as an employee of Glencore, he was partial and "in Glencore's corner". He also accepted that once he knew something, he could not "unknow" it. However, he stated that given that he did not work in the grain business, save for his legal work as in-house counsel for specific transactions, there was no real opportunity for inadvertent disclosure because he did not deal with the agricultural people on a daily basis. He said not only were these people in a different location, but that he only had conversations with Mattiske and Chris Mahoney,[160] which conversations were focused on this case, and that he was very careful about what he said to them so as to not disclose confidential information relating to this case.

119 Weber accepted it was conceivable that information he might learn in reviewing the Confidential Documents could have a bearing on other transactions in which he might incidentally become involved, in the sense that "anything is possible". Weber then stated that he considered the likelihood of him using the confidential information for anything other than his sole purpose of reviewing it for the purposes of this proceeding was "very close to zero, if not nil". He stated that the idea that Glencore would try to acquire a business that was so close to Cargill's Malt Business in terms of its nature, so that the information would be useful in any way, was remote at best. However, he acknowledged that anything was possible.

120 When asked whether he had any sympathy for Cargill, Inc's sensitivity concerning the Confidential Documents, Weber said that on 1 level he did. He said he understood that Cargill, Inc would not want people outside the company, who they viewed as their competitors, seeing information they considered sensitive. On another level, he said Cargill, Inc had decided to make the claims in this proceeding and the documents had been discovered as a result, so he did not have a lot of sympathy from that perspective. Weber continued:

The other side of it that I don't understand very well is that there seems to be an inherent assumption that I or Glencore would be interested in upsetting the sale of [Cargill's] Malt Business, but I think in fact the opposite is true. I'd be very pleased if that sale went very well. The higher price that was fetched, the better.

It is readily understandable why Weber gave this evidence.

121 Although not the subject of leave,[161] during cross-examination Weber was asked a question regarding settlement.[162] Weber said that he had express authority to enter into settlement discussions, to make and receive offers and to settle the proceeding up to certain limits, which limits were privileged.

122 Despite Weber's evidence about his limited knowledge of the grain industry, he was pressed as to the extent of that knowledge. Weber said he understood that there were regional markets and worldwide markets for barley, and accepted it was possible that Cargill, Inc and Glencore might compete in the future in regional markets where presently they did not compete. Having said that, Weber said he had no personal knowledge of whether Glencore and Cargill, Inc were trade rivals with respect to their agricultural activities.

123 Weber was repeatedly challenged about whether, and the extent to which, Cargill, Inc and Glencore were trade rivals. Weber acknowledged that he knew they were in the same line of business and were competitive with respect to food products "or anything that is grown on a farm". However, he also noted that sometimes the companies cooperated and collaborated. He further said that he understood that sometimes they bought and sold barley to each other. Furthermore, he gave an example of where Cargill, Inc and Glencore were "partners" in a shared infrastructure arrangement, being a port facility in Thunder Bay, Canada, with various other partners. However, Weber's ability to give evidence on the topic was constrained by the fact that he said he did not know much about Cargill, Inc beyond what he could read on the internet.[163]

124 When further pressed about whether or not there was trade rivalry between Cargill, Inc and Glencore, Weber simply said he could not say, though he accepted, in a broad sense, that they were competitors, but not always. He said he regarded other companies as trade rivals of Glencore, but had never regarded Cargill, Inc as fitting into that category.

125 When this issue was revisited on a number of occasions, Weber said he was not sure what was meant by "trade rivals" in the context,[164] but it was a "normative fact" that Glencore and Cargill, Inc were both large companies in the agricultural space. However, he confirmed that, given his limited experience in the grain business, he was unable to say whether they were trade rivals in the agricultural sector.

126 Weber was asked about the position under Swiss law with respect to in-house counsel being involved in commercial transactions. He gave evidence that, for legal privilege to be properly claimed under Swiss law with respect to in-house counsel's legal services, certain formalities had to be complied with. These included the requirement of both a separate physical location for the legal department and a separate computer system (not accessible to others) within the corporation. Glencore has such arrangements in place. Weber also said that, for privilege to be properly claimable, there would be issues if an in-house lawyer had a dual role of in-house counsel and commercial adviser or some other role involving a business department. He rejected the suggestion it was commonplace for in-house counsel to be engaged in the dual roles of performing traditional legal work as well as commercial work. He said he had been "100 percent a lawyer the entire time" that he had worked at Glencore. He also rejected there was any blurring of the role of in-house counsel with respect to commercial operations.

127 It is also relevant to record a topic that was not the subject of cross-examination. During the course of submissions about whether leave to cross-examine ought to have been granted, an exchange occurred with respect to any sanctions that might be imposed upon Weber if he were to breach any undertaking to the court. In rejecting the Viterra Parties' submissions as to why leave should not be granted to cross-examine on this issue, I stated that the attitude of Weber to the possibility of any sanctions and their effect on his reputation may be relevant matters for me to take into account. That position was accepted by the Viterra Parties' senior counsel. Notwithstanding leave was granted on this issue, under cross-examination it was not put to Weber that he would not be concerned about his professional reputation if he was the subject of sanctions imposed by the New York Supreme Court. When this fact was raised with the Cargill Parties' senior counsel, he said it was accepted Weber would be subject to ethical obligations that apply to lawyers admitted in New York and that the court should infer that it would be important to Weber's professional reputation not to be the subject of sanctions in New York.

128 Further, no questions were asked of Weber specifically challenging his asserted need to be involved in the upcoming hearing concerning the possible amendment of the 19 July Orders.[165]

129 The further affidavit of De Munter principally dealt with trade rivalry and the sensitivity of information contained in the Confidential Documents. De Munter deposed that Cargill, Inc and Glencore both operated in the agricultural commodities space, including the grains sector (in relation to wheat, barley, corn and sorghum, amongst other things), the oilseed products sector and the cotton sector.

130 As to Cargill, Inc's activity in the barley sector, it was stated to include originating, handling, trading, processing and distributing barley on a global basis. It was stated that Glencore and Cargill, Inc were the long-time rivals and competitors in the grain sector, with Cargill, Inc trading grain commodities since 1865 and Glencore since 1974. It was suggested there was no prospect of Cargill, Inc and Glencore ceasing to be trade rivals any time in the foreseeable future.

131 Further, De Munter stated that Glencore and Cargill, Inc both operated in the same sectors and locations, were both multi-national and well-resourced agribusinesses, and were likely to have the same entities "on their radars" in terms of mergers and acquisitions in the agricultural commodities industry.

132 De Munter also gave further evidence concerning sensitive information regarding barley and potential future transactions contained in the Confidential Documents.

133 With respect to the barley information, De Munter stated that, in the hands of a competitor in the same barley trading sector "such as Glencore", it could be used to the competitor's benefit or Cargill, Inc's detriment or both.

134 Before turning to the specific documents identified, it should be noted that the Cargill Parties did not put this specific evidence before the court on the previous hearing of the application. This was despite a submission by the Viterra Parties highlighting that the Cargill Parties had not identified what parts of the Confidential Documents were relied upon with respect to barley. On 11 September 2018, the Cargill Parties stated to the court that they had not had time to do so. On that occasion, the Cargill Parties also submitted that the identification of this evidence was not "really a point on which this application turn[ed]". No doubt this submission was made on the basis that it was common ground between the parties that Cargill, Inc and Glencore competed in the barley sector.

135 The particular documents relied upon by Cargill, Inc, as identified by De Munter, were:

(1) A document containing Cargill, Inc's views of synergies for barley origination in North America and Asia in relation to a potential joint venture with another entity in the grain sector.

(2) A document concerned with the scope and structure of a joint venture with another entity in the barley sector.

(3) Five documents containing details of proposed geographic expansion and strategies around barley sourcing and origination in particular regions that would result from an agreement between Cargill, Inc and certain potential joint venture partners.

(4) Two documents containing Cargill, Inc's actual and forecast volumes and malt margins for various regions, and with respect to different malting plants within those regions.

(5) A document containing commentary and a breakdown in relation to the year-to-date financial results of Cargill's Malt Business for the financial year 2017.

(6) A document containing the financial earnings results and projections of a proposed joint venture partner whose information was shared with Cargill, Inc pursuant to a non-disclosure agreement.

(7) A document containing a summary of capital expenditure projects, many ongoing, in which "internal and sensitive" barley cost strategies were discussed, together with the impact of the projects in connection with the strategies. The document also includes Cargill, Inc's intentions in respect of barley handling at a particular plant.

(8) A document containing estimates and projections for barley costs, gains and origination in the North American region leading up to financial year 2020.

(9) Documents containing financial summaries for all of Cargill's Malt Business for the financial years 2017 and 2018, including a line item for "barley costs", as well as gross margins, barley gains and losses, and merchandising earnings.

(10) A document containing information about longer term commitments for barley sourcing and origination.

136 With respect to most of these documents, De Munter stated how the relevant information might be used by a competitor in a manner adverse to Cargill, Inc's interests. This included learning how any proposed joint venture would affect "the competitive landscape", plus gaining knowledge of Cargill, Inc's strategies concerning barley sourcing and origination, margins that a purchaser of barley is making, Cargill, Inc's intentions regarding barley handling at a particular plant, and so on. As none of this evidence was the subject of challenge, it is unnecessary to set out any further the various ways in which the information might be used. It is sufficient to say that that evidence has been accepted.

137 De Munter also deposed that the Confidential Documents revealed Cargill, Inc's profit and loss structure and the content of board materials of Cargill, Inc. It was suggested that, if this information were obtained "by a rival such as Glencore", the documents would reveal how Cargill, Inc manages performance and risk, including its appetite for risk and the tools used, together with how it approaches strategic decision-making. It was suggested such information could be used "by a rival such as Glencore" to gain an advantage by anticipating Cargill, Inc's likely conduct and decisions. Further, it was stated that the Confidential Documents revealed specific information around regional activity in the "barley space", as well as customer information which could be used to gain an advantage by capitalising on opportunities to optimise barley flows.

138 With respect to sensitive information regarding potential future transactions, 34 documents were referred to by De Munter. These documents identified "key competitors" who might be interested in purchasing Cargill's Malt Business, details of a potential joint venture and related information, Cargill, Inc's views on the attractiveness of 2 different potential joint venture partners and a document concerned with a comparison of potential synergies between 2 potential joint venture partners.

139 Again, how this information might be used is set out, but it is not necessary to refer to it in detail as the evidence was not contested. That evidence is accepted for the purposes of this application. Speaking broadly, each of the matters about which De Munter stated advantage might be taken by a competitor related to information that might be used in the operations of a competing business in order to obtain a competitive benefit or to cause Cargill, Inc some detriment.

140 As to the further evidence relied upon by the Cargill Parties, Whiting's affidavit sworn 18 October 2018 related to the assets held in Australia by the Viterra Parties. It referred to newspaper articles, correspondence and financial accounts for Viterra Holdings as at 31 December 2016 and 31 December 2017. The affidavit suggested the available information did not make it possible for the Cargill Parties to know the nature and extent of inter-company arrangements between Viterra Holdings and its parent companies Viterra Inc and Glencore. It was also stated that the Cargill Parties continued to have concerns regarding whether there were sufficient unencumbered assets within the jurisdiction capable of meeting any damages awarded.[166]

D.3 Earlier evidence relied upon on the rehearing of this application

141 As to the evidence relied upon in previous related applications and the initial hearing of this application, the parties indicated they relied on it all on this application. Much of that evidence may be conveniently referred to by reference to the reasons for the earlier rulings.

142 As to the evidence before the court for Ruling No 9, that has been referred to and summarised above.[167] There is no need to elaborate beyond this.

143 The additional evidence before the court at the time of Ruling No 13 was the affidavit of Savona sworn 21 August 2018. Some of the relevant aspects of this affidavit are referred to above.[168] Broadly speaking, under the heading "Confidentiality of the Valuation and Transaction Documents", Savona's affidavit was divided into 2 sections: the first dealing with specifics and largely concerned with Cargill's Malt Business by reference to the contents of identified Confidential Documents; and the second, in more general terms, dealing with the barley sector and "likely" future acquisition targets of Cargill, Inc and Glencore, including Cargill, Inc disclosing "potential" targets. As already touched upon,[169] Savona's affidavit also gave evidence of her own and, based on Tassoni's information, other experience with respect to in-house counsel to being excluded from confidential information in the past.

144 For the purposes of the 30 August 2018 summons filed by the Viterra Parties, the principal affidavit relied upon was that of Weber, sworn 30 August 2018. That affidavit dealt with: Weber's employment with Glencore; his history of compliance with confidentiality undertakings, and the absence of any complaint in that regard; [170] his knowledge of Glencore's commercial transactions; the fact that he is the sole person giving instructions on behalf of Glencore with respect to this proceeding; his admission to practice; and the absence of any disciplinary history. Further, Weber deposed about: Glencore not being involved in the malting industry; responded to affidavits filed on behalf of the Cargill Parties concerning "asserted grounds of oppression"; dealt with possible security issues if he were given access to the Confidential Documents; discussed his relationship with other Glencore officers and employees with respect to confidential information, including previous discussions in which he declined to participate,[171] and also gave evidence of Glencore's presence in Australia.[172]

145 In light of the extensive evidence given by Weber on this application, which is set out above,[173] it is unnecessary to fully recount what is set out in Weber's 30 August 2018 affidavit. However, it should be recorded that, in that affidavit, Weber gave unchallenged evidence that, presently, his involvement in Glencore's grain business was limited to his participation in having oversight of this litigation.[174] Self-evidently, this statement includes Glencore's business activities with respect to barley.

146 On this application, the Viterra Parties stated they also relied upon an affidavit of Alexander Baykitch (a partner at King & Wood Mallesons, the Viterra Parties' solicitors) sworn 28 August 2018; that is, 2 days before the Viterra Parties' summons was filed. That affidavit concerned correspondence arising out of Ruling No 13. In particular, it was concerned with the obligations of the Cargill Parties with respect to discovery arising from the 19 July Orders.

147 Also on 30 August 2018, Justice affirmed an affidavit seeking leave to file the Viterra Parties' summons.

148 On 7 September 2018, Justice affirmed a further affidavit by which she exhibited an article entitled "Cargill Explores Options for $1 Billion Malt Business". The affidavit also exhibited the rules of professional conduct for the New York State Unified Court System (Part 1200), the rules of the Chief Administrator of the Courts (Part 118) concerning registration of attorneys in New York, and an extract from the New York State Unified Court System website. The last of these documents showed that, as at 9 September 2018, Weber was currently registered as an attorney, with the next registration due in February 2020. Further, rule 8.5(a) of the rules of professional conduct provides that while a lawyer is admitted to practice in New York State, the lawyer is subject to disciplinary authority of New York State, regardless of where the lawyer's conduct occurs.[175]

149 Weber swore further affidavits on 11 and 12 September 2018 concerning his ability to keep the Confidential Documents secure in the event that he were granted access.

150 In opposition to the Viterra Parties' application for Weber to have access, the Cargill Parties also filed further affidavits to those relied upon for the purposes of Ruling No 13.[176] Whiting swore an affidavit on 4 September 2018, which exhibited publicly available articles concerning Glencore's business operations, amongst other things. The affidavit also recorded that, as at 3 September 2018, Weber's status was "inactive" with respect to his registration with the New York Supreme Court.

151 The affidavit referred to Nicholas Pappas, a senior partner at King & Wood Mallesons, and detailed his history of dealings with Glencore since February 2013 (including his retainer for the sale of Joe White), together with publicly available information about his specialisation with respect to mergers and acquisitions, and general corporate and commercial advice. No doubt this evidence was put forward to suggest this particular external lawyer did not require Weber's assistance or involvement.

152 Further, the Whiting affidavit touched upon Weber's involvement in this litigation by referring to certain affidavits that he had previously sworn.

153 Finally, the Whiting affidavit dealt with the means by which the Confidential Documents had been provided electronically. It was suggested that if Weber were permitted to have access, and the means previously adopted with the parties were utilised, it would be necessary for him to download those documents onto the Glencore computer system in Switzerland.

154 On 11 September 2018, Whiting swore a further affidavit, much of which has been overtaken by events. However, as it has been submitted that all the affidavits are relied upon, it will be touched upon briefly.

155 The affidavit was mainly concerned with the position of Fitzgerald, both with respect to this litigation and his status as a legal practitioner. The affidavit also detailed an open offer that had been made for Fitzgerald to have access, in lieu of Weber, which offer had been rejected by the Viterra Parties.[177]

156 This Whiting affidavit also dealt with a confidential discovery regime in this proceeding,[178] and in particular the access that had been given to Weber.[179] Pursuant to that regime, the Cargill Parties have discovered 6,039 documents. In addition, the affidavit recorded that, excluding privileged documents, the Cargill Parties had discovered 34,196 documents and the Viterra Parties had discovered 16,235 documents.

157 After I gave my oral ruling on 11 September 2018, I directed the parties to agree upon a satisfactory arrangement for Weber to have access electronically, ensuring all necessary security measures were in place. As is often the position in this case, the parties failed to agree.

158 The issue of an appropriate means of access was raised in open court on 12 September 2018, and the Viterra Parties relied upon the further affidavit of Weber dated 12 September 2018.[180] The parties again failed to agree and further submissions were made orally on 13 September 2018. As already noted,[181] the issue was dealt with in such a manner that it was not necessary for the court to formally rule on the issue as part of Ruling No 16.

159 Also, after the oral ruling on 11 September 2018, the Cargill Parties sought to put further evidence before the court. An affidavit affirmed by Elizabeth Hilliard on 13 September 2018 set out the competing regimes for access.[182] In that affidavit, it was stated that a provider of secure data rooms, Ansarada, had been contacted and information had been obtained with respect to the provision of a secure data room. Further, the affidavit exhibited an email sent to the Viterra Parties' solicitors which stated that it was the Cargill Parties' view that "the appropriate way forward is to engage the services of Ansarada to set up, in effect, a data room accessible only by [Weber]". A subsequent letter was also exhibited. In that letter, the Cargill Parties' solicitors restated that the proposed secure data room was the appropriate means of access to be adopted. That letter said the provider was "well equipped to provide a quick and simple solution which safeguards the highly sensitive contents of the [Confidential] Documents whilst still allowing [Weber] access to the [Confidential] Documents in a convenient and user-friendly manner". In addition to stating that the data room could be set up within an hour of instructions being given, various other matters were itemised to support the appropriateness of the proposal. Finally, the letter invited the Viterra Parties to agree to the proposal.[183]

160 Since reserving my decision after the rehearing of this application, I have re-read each of these earlier affidavits again.

161 The applicable legal principles are not in controversy. Assessing whether or not access to confidential documents should be granted is a balancing exercise, and the factors to be considered are as follows:[184]

(1) The degree of relevance of the document or documents.

(2) The extent to which the document or documents are confidential, including whether the information has already been disclosed in the proceeding.

(3) The use to which the information might be put once it is known, such as by an opposing party who is a trade rival or is also an opposing party in another proceeding (or an anticipated or pending proceeding).

(4) The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings.

(5) Any other matters relevant to the due administration of justice, including ensuring compliance with the overarching purpose in the Civil Procedure Act 2010 (Vic).[185]

162 As to the first of these matters, with minor exceptions,[186] the Cargill Parties did not ask the court to rule on the Confidential Documents separately; on the contrary, they submitted the court should not take that approach. To elaborate, although I have been taken to some of the Confidential Documents for the purpose of the Cargill Parties advancing their position on confidentiality (this occurred on the application before Ruling No 13) and have seen a considerable number of the Confidential Documents during the course of the trial, on the rehearing of this application the Cargill Parties' senior counsel stated it was the Cargill Parties' position that I should not consider the documents individually, but should exercise the court's discretion by considering the Confidential Documents as a whole (with the exception of documents numbers 4 and 50). Further, for completeness, not all the documents the subject of the 19 July Orders have been discovered by the Cargill Parties by reason that the more recent documents have been created since the Cargill Parties last provided discovery pursuant to the 19 July Orders and responded to certain calls on 9 August 2018. There is still an outstanding application to be heard on this issue of further discovery once this current application has been finally heard and determined.[187]

163 With respect to the third matter referred to above, the term "trade rivalry" is very general. It may refer to "fierce trade rivals"[188] or rivals who compete in a far less combative manner. It encompasses many possibilities. The term might apply to the whole of a rival's business or only a very small part of it. Further, it may involve direct, immediate competition with respect to a specific business opportunity or the respective businesses of the rivals more generally to, at the other end of the spectrum, only the real possibility of competition in the future.

164 Self-evidently, the nature and extent of the trade rivalry is relevant in assessing the use to which any confidential information might be put once it is known. Ordinarily, the more immediate and acute the rivalry, the greater the risk of disclosure or inappropriate use and, in some cases, the greater the weight that would be given to this factor in the balancing exercise involved.

165 A leading case on this issue is Mobil Oil Australia Ltd v Guina Developments Pty Ltd.[189] In that case, Roads Corporation called for expressions of interest for a construction project. Guina Developments Pty Ltd ("Guina") lodged an expression of interest, but was not chosen as the preferred developer. Within 2 months of the preferred developer being chosen, Guina commenced a proceeding against Roads Corporation seeking declaratory relief to the effect that Roads Corporation's decision in choosing another bidder[190] as the preferred developer was void. Guina sought discovery from Roads Corporation, including the expressions of interest submitted by competing bidders.

166 A competing bidder had marked a financial proposal, forming part of its expression of interest, "Commercial-in-Confidence" on the basis that disclosure of the information in the proposal would be detrimental to its commercial interest. Roads Corporation objected to the production of that document. Objection was also taken by Roads Corporation to the production of 2 other documents created by it which contained material derived from the financial proposal.

167 As was highlighted by Whelan JA, the facts of that case have a number of distinguishing features when compared with the issues of trade rivalry at hand. As his Honour stated:[191]

• the parties whose information was to be disclosed were not parties to the litigation;
• the information which would be revealed was information as to the contents of a directly competing tender, and as such was clearly information which could advantage the recipient and disadvantage the parties whose information was disclosed;
• the damaging parts of the information which would be disclosed were not the parts which were relevant to the case;
• the recipient of the information was to be the principal of the competitor, so that it was inevitable that the information would be compromised by his knowledge of it.

168 Whilst these features are undoubtedly the key ones, there are further matters which distinguish the case:

(1) The primary judge had not inspected the 3 confidential documents in issue.[192] In this case, the Confidential Documents have been put before the court.[193]

(2) The application was made at the interlocutory stage of the proceeding.[194] In this case, the issue is being addressed at trial, when some of the Confidential Documents are already in evidence and have been provided to the experts.[195]

(3) The primary judge did not even consider the question of whether the case could proceed without the information being disseminated beyond the external lawyers and experts.[196] On this application (including the previous hearing), that is the very question the court has been asked to consider.

(4) There was an issue as to the extent to which the 3 confidential documents contained irrelevant information.[197] In this case, the Confidential Documents have been discovered pursuant to court orders after a determination on relevance.[198]

169 Further, a key passage of Hayne JA's judgment, referred to by the majority judgment in the Appeal Reasons,[199] is instructive:[200]

Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?

(Emphasis added.)

170 In the matter presently under consideration, it is not proposed that "principals" or those responsible for the commercial decision-making at Glencore be given access, but only someone with quite a different role within Glencore's structure. As may be seen from the emphasised words in the above passage, what was stated was not directly concerned with considerations relevant to granting access solely to in-house counsel of a trade rival, nor was it a statement that was intended to govern situations where the obligation to be imposed could be considered possible of performance. In short, the case was concerned with disclosure that would inevitably involve the confidentiality of the information being destroyed "at once" for all time. It was in this context that Hayne JA posed the question as to whether disclosure was "necessary for the attainment of justice".

171 A question in these terms is not always the starting point. On the contrary, in many cases a court would be misdirecting itself in imposing such an onerous threshold with respect to access. So much is clear from another passage in Mobil Oil Australia Ltd v Guina Developments Pty Ltd:[201]

It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality. No more specific rule can be laid down - each case will fall for determination according to its own facts. ... It is by no means self-evident to me that disclosure to the principals of the plaintiff is necessary for the attainment of justice. In particular it is not self-evident that the plaintiff can properly consider the course which it will follow in relation to the litigation only if its principal has access to the material that is confidential.

(Emphasis added.)

172 Ordinarily, the starting point in any commercial case is that, absent issues concerning confidentiality, an opposing party ought to be able to inspect any relevant document discovered by the other party (subject to issues of privilege). This ability to inspect is designed to ensure a party knows the case it has to meet,[202] that it may be properly advised, and that it may properly instruct its legal representatives and any experts.[203] Further, even if confidential documents are discovered, the mere fact that they are confidential is ordinarily not a proper basis to withhold production from the opposing parties. If some restriction on production is sought, the onus is on the party seeking to impose the restrictive regime to justify its imposition.[204]

173 In some cases where confidentiality issues arise, these are dealt with by confidentiality undertakings agreed between the parties, ensuring that the confidential information will not go beyond those who have given appropriate confidentiality undertakings or be put to any unauthorised use.[205] Often, such an arrangement is sufficient to protect the confidential information in question without the involvement of the court or any strict demarcation as to which persons or class of persons within a corporation or an organisation are entitled to have access.[206]

174 In other instances, this kind of protection is not enough. Whether a stricter regime is required is something that must be assessed on a case by case basis, depending on the particular circumstances of the proceeding at the particular time the application is made.

175 Although each case must be considered on its own facts, authorities dealing with access being given to in-house counsel establish a number of factors that may need to be considered, namely:

(1) The nature and content of the confidential information, including the likely detriment that might be suffered, or improper gain that might be made, if the information were disclosed.

(2) The risk of inadvertent or accidental disclosure created by the disclosure, and whether it is unacceptable in the circumstances.[207]

(3) The extent to which in-house counsel is involved in commercial operations or the decision-making of her or his employer, including to whom in-house counsel reports and whether she or he forms part of the executive management of the employer.[208]

(4) The extent to which the confidential information was capable of being used by the in-house counsel's employer for its commercial purposes, and, to the extent it was so capable, whether it was likely that in-house counsel would have occasion to use the information.

(5) Whether providing the confidential information to in-house counsel would produce, or create a real risk of, conflict between her or his loyalties to the employer and the duty to keep the information confidential.[209]

(6) The role in-house counsel has in the litigation in question, including the extent of responsibility for the conduct of the litigation, such as providing instructions to external lawyers and advising the employer or any parent company on its progress.

(7) Whether the role of in-house counsel in advancing the employer's case or exploring settlement would be hampered if access were not given.[210]

(8) The extent to which others of the in-house counsel's employer have or are entitled to access.

(9) Whether in-house counsel is subject to the jurisdiction of the court, or may be subject to sanctions imposed by courts of other jurisdictions.

(10) The extent to which in-house counsel has knowledge of the commercial attitude and strategies of her or his employer.

(11) The qualifications and experience of in-house counsel, including whether in-house counsel properly understands her or his obligations with respect to discovery, including inspection and confidentiality.

(12) The extent to which in-house counsel's qualifications and experience, together with her or his knowledge of the commercial attitude and strategies of her or his employer may allow in-house counsel to understand the confidential information in a manner beyond or differently to external lawyers or any experts.

(13) Whether in-house counsel has already provided confidentiality undertakings and, if so, whether there has been any issue with compliance.[211]

(14) The nature and extent of any undertakings to be given by in-house counsel or the employer, or both.

(15) The security systems or measures in place, or proposed, to satisfy the court the confidential information will be properly protected if access is given to in-house counsel, and whether these are suitably tailored to the circumstances.[212]

Obviously, some of the matters listed above overlap.[213]

176 Most of the matters set out above are self-explanatory. As to the second of those matters, the following was stated in Conor Medsystems, Inc v The University of British Columbia (No 4):[214]

[T]he problem that confronts the court is the risk of inadvertent or accidental disclosure. The risk is two-fold. First, it involves the unconscious use of confidential information. That is to say, information which once in a person's possession cannot be distinguished from other information in the person's possession. The other kind of inadvertent use is when it is impossible to ignore the confidential information once it is known. That is the kind of inadvertent disclosure, I think, Hayne JA had in mind in Mobil [Oil Australia Ltd v Guina Developments Pty Ltd].

A further form of inadvertent or accidental disclosure involves the type that has already occurred in this case, namely accidentally including persons not the subject of confidentiality undertakings in the dissemination of the information in question.[215]

177 Necessarily, when in-house counsel has not had access to the relevant documents, it is difficult for the evidence in support of the application for access to include precisely how she or he may understand the confidential information differently to those who already have access.[216] Each case must depend on its own facts, but this situation may mean it is necessary for the court to inspect the documents. That said, inspection by the court, of itself, may not determine the outcome. Evidence given by in-house counsel on the issue may be relevant and, depending on the facts of the case (including the subject matter of the confidential information and the experience of in-house counsel), probative to the issue of the need of allowing in-house counsel to inspect.

178 The Cargill Parties submitted that Glencore and Cargill, Inc are presently trade rivals and have been so since Glencore's inception over 40 years ago. They also submitted that they will continue to be trade rivals. In support of this, reliance was placed upon their "very substantial agri-businesses" competing in the grains, the oilseeds production and the cotton sectors. Reference was also made to Glencore and Cargill, Inc recently having been in a supplier-trader relationship in relation to barley, together with the possibility of Cargill, Inc purchasing barley from Glencore in the future. Further, reference was made to the possibility of both entities having the same targets with respect to mergers and acquisitions in the agricultural industry.

179 The Cargill Parties also relied on what Glencore has stated publicly about it being keen to grow its agricultural unit.[217] The public statements include statements to the effect that Glencore engages in acquisitions opportunistically, together with assertions about having the financial wherewithal to act "if and when [Glencore] want to do any acquisitions". Reference was also made to press commentary to support the suggestion that both are major players in the agri-business sector. Putting it broadly, the Cargill Parties submitted, at its lowest, the rivalry was properly described as very substantial.

180 It was contended that certain observations by Hayne JA, in Mobil Oil Australia Ltd v Guina Developments Pty Ltd,[218] were apposite in the context of the trade rivalry between Glencore and Cargill, Inc. In particular, the Cargill Parties submitted that, if access were given to Weber, the confidentiality of the information contained in the Confidential Documents would be destroyed. To support this contention the following was relied upon:

(1) Weber works on very significant transactions, such as acquisitions, divestitures and joint ventures for Glencore.

(2) Weber is very senior and reports to very senior people within Glencore.

(3) Weber was involved as in-house counsel when Glencore disposed of Joe White.

(4) By reason of Weber's knowledge and experience at Glencore, Weber had historical, institutional and transactional knowledge.

(5) Weber had an understanding of the commercial environment of industries in which the Viterra Parties carry on their respective businesses which, along with other factors, made him uniquely placed among the Viterra Parties' employees.[219]

(6) Weber had knowledge of how acquisitions and divestitures of investments and assets occurred within Glencore's global business, and what matters were commercially relevant to those kinds of transactions, together with knowledge of the commercial and strategic objectives and priorities of each of the Viterra Parties.

(7) Weber had over 2 decades worth of experience and knowledge in reviewing and assessing all relevant aspects of such transactions, including, amongst other things, consideration of valuation issues and valuation models and analyses relating to acquisitions and divestitures of various assets and businesses by Glencore and its affiliates.

(8) Weber has, in the past, been asked questions by other Glencore employees which, if he had answered responsively, "would have required him to divulge Cargill's confidential information disclosed pursuant to undertakings given [by Weber] in May 2016".[220]

(9) Further to (8) above, it was submitted that, given Weber had received over 6,000 documents under the confidentiality regime, it could not be known whether Weber's confidence about not breaching Weber's Undertaking or previous confidentiality undertakings was well founded.

181 Based on these matters, it was submitted that Weber's role was such to enliven a greater risk of inadvertent disclosure. In this regard, a passage from the majority of the Court of Appeal was referred to:[221]

Even if such use is subconscious rather than conscious and such disclosure is inadvertent rather than deliberate, the harm to the commercial interests of the party providing discovery would be the same.

In the Cargill Parties' written submissions, it was contended that Weber's use of the confidential information provided to date could be wholly unwitting. In a similar vein, and relying on what was stated by the majority in the Appeal Reasons,[222] the Cargill Parties submitted the fact that Weber was an internal lawyer embedded in the organisation of which he was employed, gave rise to a greater risk of inadvertent use or disclosure of the information in the Confidential Documents.[223]

182 Emphasis was placed upon Weber's continuing duties of loyalty to the Viterra Parties, in particular Glencore.[224] Further, reliance was placed upon the fact that neither Weber nor the Viterra Parties had not offered any undertakings concerning Weber's role in relation to barley or agricultural acquisitions by Glencore in the future.

183 In relation to Weber's evidence in his 30 August 2018 affidavit that, with respect to barley, he did not have a "day-to-day" involvement, it was submitted that the "only inference" to be drawn was that a role other than a day-to-day role nonetheless exists.[225] It was submitted that inference could more readily be drawn in circumstances where Weber's most recent affidavit of 16 October 2018 said nothing on the subject.

184 Finally, on the risk of disclosure, it was submitted that, given Weber's role and the trade rivalry between Cargill, Inc and Glencore, there was a very real risk of prejudice to Cargill, Inc by Weber being privy to the Confidential Documents.

185 The Cargill Parties submitted that because Weber viewed himself as "the effective client", and considered it a matter of due process that he have access to the Confidential Documents, he had disclosed his real reason for seeking access. It was submitted that the other reasons given by Weber reflected his subjective views and, although the honesty of Weber's belief was not challenged, it was submitted they did not withstand scrutiny when the relevant matter were considered objectively, including in the context of the highly experienced solicitors and counsel retained in this proceeding. Further, it was contended Weber's approach ignored the range of available mechanisms for balancing the Cargill Parties' interests in ensuring confidentiality is maintained.

186 As to settlement, it was submitted this could not logically be a reason to grant access, unless Weber had personal authority to give instructions in respect to settlement proposals or had some role that made him better qualified than the external representatives to give advice and make representations to those with authority to make or accept settlement proposals. Embracing the observation by the majority in the Court of Appeal,[226] it was submitted that unless these things could be established, allowing Weber access may simply add "another individual to the chain of lawyers" giving advice and recommendations regarding settlement issues.[227] Further, it was submitted that adding Weber to those who already had access would be to add a person in an entirely different position to the external advisers because Weber was "a senior employee of a trade rival [whose] confidentiality undertaking was less efficacious".[228]

187 The Cargill Parties submitted Weber never expressed any current desire or real intention to embark on meaningful settlement discussions. Further, it was submitted that Weber's reference to commercial and strategic aspects of the interests of the Viterra Parties was so vague and ambiguous as to not advance the matter.

188 The Cargill Parties further submitted that, to the extent the Confidential Documents had any relevance, it was in relation to loss or damage. It was observed that the Viterra Parties' expert had had access to the Confidential Documents and that had not caused him to alter his views.

189 In the Cargill Parties' written submissions, it was suggested that, based on Weber's affidavit evidence, it appeared to be accepted by the Viterra Parties that "the legal and forensic input can be supplied by external advisers" and there was no reason why Weber needed access to supplement that input with whatever "broader 'commercial/strategic considerations' [Weber] had in mind". The premise upon which it was put that the Viterra Parties appeared to accept this was unclear. This proposition was referred to in oral submissions, but the basis on which the suggested appearance of acceptance by the Viterra Parties with respect to external advisers was put remained unclear. The suggestion is contrary to the Viterra Parties' submissions and Weber's evidence, and need not be addressed further as a result.

190 As to Weber's evidence about what he could add if he were allowed to inspect the Confidential Documents, it was submitted that it was unconvincing. The Cargill Parties contended the very experienced external lawyers, together with the Viterra Parties' expert, were more than capable of identifying and addressing the relevant questions. The Cargill Parties submitted that when the court considered Weber's evidence in the context of this litigation, where there had been "lawyering-up on both sides", it was not clear why it was "critical" for Weber to have access. It was further submitted that Weber's evidence on his ability to provide a meaningful contribution if he were given access should be given little weight.

191 As to how the Confidential Documents might be utilised in the trial, the Cargill Parties referred to the fact that their case is closed and they do not seek to tender any documents beyond those already tendered. It was also submitted that the Viterra Parties had tendered some of the Confidential Documents and the tendering of documents was a matter for counsel. Further, the Cargill Parties recounted that the Viterra Parties indicated on 10 October 2018 that their case would be closed promptly, subject to certain limited pieces of evidence.[229] To the extent this submission as to the state of affairs might be suggesting that the Viterra Parties ought to be shut out from tendering further documents while the issue remains live as to whether Weber could have access, it cannot be accepted as a matter of procedural fairness alone. In any event, it is sufficient to note that, at this point, the Viterra Parties have not closed their case and there is no (and could not be any) suggestion of any delay in the making of this application.

192 In any event, the Cargill Parties submitted that the Confidential Documents were not central to the controversy between the parties and their degree of relevance was less than many other documents in the proceeding. They contended that the fact that the Confidential Documents were created 5 or more years after the events in question meant that their degree of relevance was limited and weighed against disclosure to Weber. Emphasis was placed upon the Confidential Documents being concerned with the entirety of Cargill's Malt Business, whereas the issues in the proceeding were only concerned with Joe White. However, the Cargill Parties made clear that, in making this submission, there was no challenge to the previous finding that the Confidential Documents were directly relevant to the amount of any loss which might have been suffered by Cargill Australia.[230]

193 The Cargill Parties submitted that not only had the Viterra Parties not demonstrated a need for Weber to have access, but the court needed to be mindful of the high sensitivity of the Confidential Documents. They submitted that, on 1 view, disclosure to Weber of the Confidential Documents would be to destroy the confidentiality of the reserve for the sale of Cargill's Malt Business. It was submitted it was hard to imagine more sensitive documents because their revelation had the potential to disclose an internal estimate of value with the potential to harm Cargill, Inc presently. In addition to the significant harm that could be caused, it was contended the risk of that harm was very high and it was unlikely it would be readily quantifiable initially. Moreover, it was put that the commercial harm caused by any breach of confidence would be difficult to quantify and was "probably unquantifiable".

194 With respect to the Cargill Parties' application to vary the 19 July Orders, it was submitted that it was unnecessary for Weber to have access for 2 reasons. First, based on what was said in Ruling No 13,[231] it was said that the external lawyers and experts were in as good a position, if not better, to identify the issues relevant to the proceeding. Secondly, and in any event, it was submitted that, if Weber did not have access to the Confidential Documents in order to give instructions, and the external lawyers could not agree to a variation (or implicitly were instructed not to agree), it "simply means that (while regrettable) the summons will need to be determined on the basis that it is opposed".

195 As to Weber's Undertaking to the court, emphasis was placed on the fact that Weber resides outside the jurisdiction and was not subject to the 3 sanctions available with respect to officers of this court, as identified by the majority of the Court of Appeal, namely:[232]

(1) Professional disciplinary action by the court or a legal regulatory authority, including the ultimate sanction of being struck off the roll of practitioners.

(2) Punishment for contempt of court, which may include a custodial sentence.

(3) An award of damages for any loss that is suffered as a result of the breach of the undertaking if the elements of a breach of confidence or another cause of action can be established.

196 It was further submitted that Weber's status with the New York bar was too uncertain. By reference to the circumstances referred to in the previous paragraph, the Cargill Parties contended the court could not conclude that Weber's belatedly renewed registration carried with it the force of sanction which founds the court's confidence in the external lawyers being granted access. It was accepted the "belated" proffering of an undertaking as to damages by the Viterra Parties was relevant, but did not provide the personal sanctions to which the majority of the Court of Appeal referred.

197 No doubt referring to Ruling No 16,[233] the Cargill Parties submitted that the qualitative difference between an undertaking to the court and an undertaking given pursuant to an arrangement not involving the court was "not so material as to be a substantial change from the position as at the time of Ruling No 13". It was further submitted that an undertaking was significant whether it was given to the court or another party. Furthermore, it was submitted that any person who gave a confidentiality undertaking under a discovery regime would be subject to the implied undertaking, which was a substantive legal obligation to the court, punishable by contempt.[234]

198 In the Cargill Parties' written submissions, it was suggested the evidence about the Viterra Parties' assets within the jurisdiction to meet any damages claim pursuant to an undertaking to the court remained unclear.[235]

199 As to third parties, on the premise that Weber were to be granted access, it was submitted that if it was not the court's intention in Ruling No 16 to positively reject a regime for third parties to be consulted before any relevant disclosure, then the orders must necessarily provide for such a regime before Weber was entitled to access. In Ruling No 16, I found that private arrangements with respect to confidentiality between Cargill, Inc and third parties "must be subject to access being given in the limited circumstances proposed".[236] This necessarily rejected the court imposing any third party regime which had been the subject of submissions on 11 September 2018.[237] The Court of Appeal rejected the ground of appeal based on this issue.[238]

200 Notwithstanding this, on the rehearing, the Cargill Parties pressed for the third party regime previously suggested in the alternative by the Viterra Parties. The order sought was as follows:[239]

Documents containing information which is confidential to one or more third parties are to be made available to Weber in the Data Room subject to the following:

1. The Cargill Parties will provide to the defendants by [DATE]:
   1. A list identifying the documents which are asserted to include information confidential to one or more third parties; and
   2. A statement as to whether any such third party has consented to the disclosure of that information to Mr Weber on the terms of these orders.
2. If the third party does not consent, the Cargill Parties are to provide by [DATE] a copy of the document with the third party confidential information redacted, and only the redacted version of the document will be uploaded to the Data Room.

201 As to documents 4 and 50 of the Confidential Documents, the submissions made on 11 September 2018 were repeated.[240] In short, it was contended the 2 documents expressed the aspirational position of Cargill, Inc, and the figures contained in them were not based upon any valuation method. Further, it was submitted that, notwithstanding the unsuccessful application for leave to appeal with respect to this aspect of Ruling No 16, the issue remained alive and ought to be considered by the court again as part of the rehearing of the application because the court had, potentially, an enhanced understanding of the material.

202 The Cargill Parties did not press their previous submission that if, contrary to their primary position, access were to be granted, the court ought to grant access to Fitzgerald instead of Weber. However, with respect to the open offer previously made concerning Fitzgerald,[241] it was submitted that it ought not to be characterised as involving any concession as to the substance of the application for Weber to have access. It was further contended that offers made to find a compromise ought not to be discouraged by the offer being used against the offeror, particularly in circumstances where there was, and is, a material difference in the positions of Weber and Fitzgerald.

203 Before the rehearing of this application, the parties were informed that, at its completion, they would be required to provide to the court their respective lists of the matters they contended I was required to take into account and expressly refer to in my reasons. This was done on the basis that it did not fetter the court's ability to take into account any other factors it considered relevant in the exercise of its discretion.

204 In response to this direction, the Cargill Parties provided the following:

1. Existing competitive relationship between Glencore and the Cargill Parties

(1) The nature of the existing competitive relationship between Glencore and the Cargill Parties in the grains, oilseeds and cotton sector.

1. Potential future areas of competition between Glencore and the Cargill Parties

(2) Glencore's stated desire to make further acquisitions in the agricultural sector and financial wherewithal to do so.

(3) The likelihood of the Cargill Parties and Glencore having overlapping interests and targets.

(4) Possibility of change of position on desire to deal in malt businesses.

C. Prejudice to the Cargill Parties

(5) The nature of the prejudice that would be caused to the Cargill Parties:

(a) in the context of the sale/disposition process, from disclosure (including inadvertent disclosure);

(b) in the context of the existing competitive relationship in grain trading (particularly in barley) from disclosure or use (including inadvertent disclosure or subconscious use);

(c) in the context of future acquisitions and divestments in the agribusiness sphere.

D. Weber's status as an in-house lawyer located overseas

(6) Whether the matters identified by the Appeal Reasons ([128]-[129]) as constituting powerful incentives to comply with undertakings apply in Weber's case.

(7) The extent to which Weber's registration as a New York attorney is a relevant factor in light of his only having recently renewed his registration (which had lapsed), there being no evidence of any sanctions that might be applied to him and the fact that he does not practise in New York.

(8) Whether the documents address a subject matter or have technical features in respect of which Weber has qualifications or experience (not shared by external legal representatives and experts) that are relevant to the specific subject matter and technical features.

E. Weber's role in relation to areas of competitive engagement

(9) Weber's role in relation to barley trading: whether a role that is not "day-to-day" and the risk of inadvertent use or disclosure of information in that context.

(10) Weber's role in relation to Glencore's acquisitions and divestments and joint ventures and risk of inadvertent use or disclosure of information in the context of future acquisitions/deals.

F. The risk of inadvertent disclosure or use given Weber's role

(11) Whether Weber's role and experience of questions having been asked previously by Glencore personnel which strayed into the Cargill Parties' confidential information suggests like occasions for inadvertent use or disclosure by Weber may arise.

G. Weber's role in relation to settlement

(12) Whether there is evidence that the defendants have any real desire or intention to engage in settlement discussions which might be compromised by Weber not having access.

(13) The extent to which Weber needs access in relation to loss or damage issues in view of the fact that Potter, the Viterra Parties' expert, has the documents.

(14) Whether Weber has a role in relation to settlement that requires that he have access to all the Confidential Documents.

(a) What the commercial and strategic factors that Weber refers to are, and whether they warrant his inclusion in the disclosure class for purposes.

(b) Whether those to whom Weber reports similarly have knowledge of those commercial and strategic factors.

(c) Whether giving Weber access to the Confidential Documents solves anything if the actual decision-makers do not have access.

H. Undertakings

(15) Failure of the Viterra Parties to offer undertakings as to Weber's future role in relation to grain trading (including barley) or future transactions in grain (acquisitions, divestments, joint ventures).

(16) Whether the undertaking offered by Weber to the court is a significant change in the position since the first Weber access application the subject of Ruling No 13, in view of the fact that those obtaining access under the 7 August Orders also gave implied undertakings to the court, punishable by contempt.

I. 27 August 2018 summons to narrow 19 July Orders

(17) Whether the fact of the Cargill Parties having made that application requires that Weber have access to all the Confidential Documents.

J. Tender of some Confidential Documents by the Cargill Parties

(18) Whether the fact of the Cargill Parties having tendered some of the Confidential Documents requires that Weber have access to all the Confidential Documents including having regard to the basis of the tender, the nature, provenance and date-range of the tendered documents, the role or potential role of the tendered documents in the wider proceeding and the key issues in the proceeding, and the ability of the Viterra Parties' expert and other external advisers to access and opine on the Confidential Documents (taking into account the absence of evidence from the Viterra Parties' expert or solicitors that Weber's input is required in order to understand the documents).

K. Third parties

(19) Whether the Viterra Parties' proposal to address third party interests should be adopted.

L. Fitzgerald

(20) Whether the open offer involved any implied concession.

M. Jurisdiction

(21) Whether Glencore having been sued in Australia is a relevant factor in light of the jurisdiction clauses in the relevant agreements, and the matter of the documents being Cargill, Inc documents and it having been joined by Glencore.

N. Documents 4 and 50

(22) Whether, if the court decides to give access to Weber to the Confidential Documents, documents 4 and 50 should be withheld.

O. Access regime

(23) Whether, if the court decides to give access to Weber to the Confidential Documents, access should be given by way of inspection at King & Wood Mallesons' offices in Melbourne (which is the Cargill Parties' primary position), or whether access should be given electronically, in accordance with the terms set out in the [Previous Access Orders], as amended by the Cargill Parties.[242]

205 Whilst relying on previous submissions, the Viterra Parties focussed upon the 3 matters which were the subject of criticism by the majority of the Court of Appeal.

206 First, with respect to existing and possible future trade rivalry in barley and potential rivalry in relation to future agricultural acquisitions,[243] the Viterra Parties observed, correctly, that what was meant by "trade rivals" was not identified in the cross-examination of Weber. It was further submitted that the affidavit of De Munter did not identify what was meant by that term either. It was submitted it is unclear whether it was intended to refer to close competition in defined markets constantly, or from time to time. In summary, it was contended the use of the term was very, very vague.

207 Further, it was noted that neither De Munter nor Savona were put forward as experts in economics or competition and there was no proper attempt to link anything between the Confidential Documents with the purported trade rivalry. It was submitted that this, in itself, was fatal to the Cargill Parties' opposition.

208 As to future agricultural acquisitions, it was submitted that, whilst "anything is possible" (referring to Weber's evidence),[244] there were no future agricultural acquisitions on the horizon. Further, it was submitted this factor ought to be given very little weight because the evidence relied upon by the Cargill Parties amounted to no more than mere speculation.

209 Furthermore, the Viterra Parties relied upon the observations of Whelan JA in submitting that the decision of Mobil Oil Australia Ltd v Guina Developments Pty Ltd[245] was a completely different case.[246]

210 It was further submitted that in Ruling No 16, I had taken into account trade rivalry in balancing the relevant factors and did not treat it as a decisive factor against Weber obtaining access, and that ought still be the position. It was submitted that the further evidence of De Munter did not detract from the relevant findings in Ruling No 16.

211 Secondly, with respect to the failure to expressly refer to the absence of effective enforceable sanctions against the Viterra Parties in the event of any breaches by Weber,[247] it was submitted that this was not truly the reason for a decision adverse to Ruling No 16, but in any event that was what had been decided. The Viterra Parties said the position was remedied by the offering of an undertaking on behalf of the Viterra Parties, coupled with evidence that the Viterra Parties have assets in Australia of about $1 billion.[248]

212 Thirdly, it was submitted that, on 11 September 2018, no issue had been raised with the court about Weber's authority and that Weber's evidence at that time did not expressly deal with it. It was further submitted that the fact that the issue of Weber's authority was not referred to in Ruling No 16 was not a fault of anything that was contended at or arising out of that hearing.

213 In any event, it was submitted that Weber had now addressed the matter squarely in his affidavit of 16 October 2018, together with his oral evidence under cross-examination.[249] That evidence demonstrated Weber did have authority to accept or reject settlement proposals of some unspecified extent. In these circumstances, it was submitted that Weber's authority had now been thoroughly canvassed.

214 In addition to these responsive contentions, the Viterra Parties made further submissions. The Viterra Parties observed that Weber's credit had not been challenged under cross-examination. Further, it had not been suggested there was "a single professional blemish", and that Weber's explanations of what he would do if he obtained access to the Confidential Documents should be accepted at face value by the court.

215 It was also submitted that the prospect of inadvertent disclosure of some part of the Confidential Documents was no more than a mere possibility. This possibility needed to be viewed in the context of the controls in place and the fact that Glencore was a very large and well organised corporation. It was submitted that, given Weber's impeccable standing, the suggestion that he would not be careful or that he was likely to inadvertently disclose something that would harm the interests of Cargill, Inc was without foundation and was a matter of pure speculation.

216 In addition, the Viterra Parties submitted that, while Weber was not the ultimate decision-maker, he was an indispensable link in the chain with respect to any settlement discussions. Based on his background and present role, it was contended Weber was in a better position than the external lawyers to give advice or make recommendations about settlement. Similarly, it was submitted it was wrong to describe Weber as a mere conduit, Weber having been nominated as a trusted adviser.

217 Furthermore, and repeating what had previously been put, it was submitted that Weber was a lawyer admitted to practise in the State of New York and was subject to the disciplinary authority of that State, regardless of where his conduct occurred.[250]

218 With respect to the 3 matters of professional discipline, punishment for contempt and an award of damages with respect to a lawyer within the jurisdiction,[251] the Viterra Parties submitted Weber was amenable to the disciplinary jurisdiction in the Supreme Court of New York. Further, they stated that while he was present within this jurisdiction "as he so often has been" he was amenable to orders punishing him for contempt, which orders could be readily executed. Finally, the Viterra Parties relied upon the undertakings as to damages by each of the Viterra Parties.

219 In conclusion, the Viterra Parties submitted that all of the concerns that led to the Court of Appeal setting aside the Previous Access Orders had now been addressed and that, with the Viterra Parties also proffering an undertaking as to damages, the court ought, again, to permit Weber to inspect the Confidential Documents.

220 In response to the direction requiring the identification of the relevant factors, the Viterra Parties provided the following:

(1) Whether the Cargill Parties and the Viterra Parties are trade rivals.

(2) If so, what commodities/products/industries they so compete in, and in which geographic markets that competition or rivalry occurs in.

(3) Further, with respect to each commodity/product/industry and geographic market, whether the trade rivalry has ceased, is continuing, or may occur in the future.

(4) To the extent any such trade rivalry may occur in the future, whether that asserted future rivalry is supported by present evidence, or is merely speculative or remote.

(5) To the extent the Cargill Parties and the Viterra Parties are trade rivals having regard to the foregoing, whether such rivalry is "direct and compelling" so as to attract the principles in Mobil Oil Australia Ltd v Guina Developments Ltd [1996] VicRp 54; [1996] 2 VR 34.

(6) To the extent any such trade rivalry between the Cargill Parties and the Viterra Parties is "direct and compelling" in that sense, whether the information in the confidential discovered documents relates to the markets (as defined by product/industry, geography, and time) in which they compete.

(7) What (if any) information contained in the Confidential Documents will detrimentally affect the Cargill Parties' interests with respect to any trade rivalry with the Viterra Parties or Glencore if the latter come to know of it.

(8) The degree of relevance of the Confidential Documents.

(9) The extent to which the Confidential Documents are confidential.

(10) The use to which the information might be put once known.

(11) The utility of imposing restrictions on the information.

(12) What Weber's professional attributes (including his qualifications, role, expertise and experience) are.

(13) Whether Weber has qualifications and/or experience which are relevant to the specific subject matter, or any technical features, of the Confidential Documents.

(14) Whether Weber has intimate knowledge of the Viterra Parties' business and its commercial and litigious strategies.

(15) Whether Weber participates in decision-making on behalf of the Viterra Parties in respect of potentially competitive agricultural acquisitions.

(16) Whether there is a real possibility that the information is capable of being used by the Viterra Parties to the disadvantage of the Cargill Parties.

(17) What is Weber's professional standing, including whether or not he has been the subject of disciplinary action in any jurisdiction.

(18) What security systems are to be put in place by Weber with respect to the Confidential Documents (that is, the terms of the undertaking proffered by him to the court and the terms of access granted to him).

(19) Whether there is any risk of inadvertent or accidental disclosure and, if so, what the significance of that risk is (that is, whether any such risk is unacceptable).

(20) What undertakings as to damages are proposed to be given on behalf of the Viterra Parties for any breach of Weber's personal undertaking to the court.

(21) To the extent Weber and the Viterra Parties have proffered the undertakings which they have, whether those undertakings outweigh any risk arising from Weber's status as a lawyer not admitted in this (or any other Australian) jurisdiction, and as a non-resident of Australia.

(22) The procedural fairness of imposing restrictions on the information.

(23) The extent to which the Cargill Parties have tendered as evidence in their case, or otherwise seek to rely upon, any of the Confidential Documents.

(24) The extent to which Weber will gain any valuable insight into the manner in which the Cargill Parties approach potential acquisitions and disposals of agricultural businesses as a result of reading the Confidential Documents having regard to the substantial amount of evidence has already been received about that subject in the course of the trial of this proceeding.

(25) Whether Weber is a trusted adviser to the Viterra Parties' management and/or board of directors.

(26) Whether Weber is a "mere conduit" for the external lawyers, or otherwise performs an identical role as the external lawyers.

(27) The extent to which the Viterra Parties are unable to advance the proceeding if Weber is not permitted to inspect the Confidential Documents.

(28) The extent to which the Viterra Parties are unable to seek advice and provide instructions with respect to relevant matters if Weber is not permitted to inspect the Confidential Documents.

(29) The extent to which Weber is in a better position than the Viterra Parties' external lawyers to assess the nature and extent of the Confidential Documents, having regard to his professional attributes.

(30) The extent to which Weber is in a better position than the Viterra Parties' external lawyers to identify the issues relevant to the proceeding and to adduce evidence on the question of any loss that the Cargill Australia might have suffered.

(31) What authority or role Weber has, if any with respect to making or accepting offers of settlement.

(32) The extent to which the Viterra Parties, including by and through Weber as their chosen representative, are impaired in their ability to explore an out-of-court settlement if Weber is not permitted to inspect the Confidential Documents.

(33) The extent to which Weber is in a better position than the Viterra Parties' external lawyers to give advice and make recommendations about settlement to those with such authority on behalf of the Viterra Parties.

(34) The extent to which the interests of third parties are affected by Weber being permitted to inspect the Confidential Documents or any part thereof.

(35) If so, whether any permission granted to Weber to inspect the Confidential Documents should be subject to conditions with respect to the interests of third parties.

(36) Further, whether, notwithstanding any interests of third parties, the administration of justice (in this proceeding and generally) is better served by this court not encouraging further disputes between the Cargill Parties and the Viterra Parties about such matters, insofar as the third parties have not sought to be heard to protect their own interests.

(37) Any other matter relevant to the administration of justice.

(38) Any other matter necessary to ensure compliance with the overarching purpose in the Civil Procedure Act.

(39) Any such additional matters or factors which either party identifies or refers to in the course of oral argument at the hearing.

(40) What is necessary for the attainment of justice in the circumstances of this case.

(41) Whether, having regard to the foregoing matters or factors, Weber should be permitted to inspect the Confidential Documents, whether some or all.

(42) If Weber should be so permitted, whether such permission should be subject to conditions and, if so, what those conditions should be.

221 The starting point is the relevance of the Confidential Documents to the issues in the proceeding. In Ruling No 9, it was found that the Confidential Documents were relevant to Cargill Australia's claim for loss.[252] This relevance goes to the question of whether Cargill Australia has suffered any loss at all, and, if so, the amount of that loss. The findings as to relevance have not been the subject of challenge.

222 Further, in Ruling No 9, the question of whether the relevance of the Confidential Documents went beyond these matters was left open.[253] It is possible that the Confidential Documents may also go to questions of reliance and the cause of any loss. However, there is no need to make any determination in this regard for the purposes of this application. Suffice to say, the documents have been discovered on the basis they are relevant to Cargill Australia's claim for loss, which is a significant element of Cargill Australia's case.[254]

223 Another key factor to consider is the standing of Weber. The evidence on this application shows he is of good character and professional standing. In short, there is nothing before the court to suggest that Weber would do anything other than treat his role as in-house counsel and the giving of any undertaking with the utmost seriousness and professional care.

224 In that regard, Weber has already given confidentiality undertakings.[255] If the Cargill Parties maintain their submission that the court should lack confidence with respect to compliance with the confidentiality undertakings given to date,[256] then that submission is rejected. Whilst it is unnecessary to make a positive finding of compliance, there is no sensible basis for the court to draw any inference that Weber has not complied with his obligations in this proceeding with respect to confidentiality.

225 On the question of trade rivalry, the evidence discloses that the Cargill Parties and the Viterra Parties compete in various ways. With respect to Weber's evidence concerning his lack of knowledge of the extent of the present trade rivalry between the Cargill Parties and the Viterra Parties,[257] such evidence is of little probative value on the question of the existence of any rivalry. Although this evidence supports Weber's position generally as to his lack of involvement in day-to-day commercial matters, particularly for present purposes with respect to grain,[258] his lack of knowledge in this regard cannot alter the facts.

226 The evidence of the Cargill Parties shows that Cargill, Inc and Glencore (and entities associated with them) currently compete in the grain sector, including barley.[259] They also have very extensive interests in the agricultural sector beyond grain, and it seems, at least sometime in the future, that they are likely to have competing interests with respect to acquisitions or other commercial transactions or arrangements.[260] However, as to the immediacy of such things, the evidence does not indicate any such proposed transaction is currently in the offing, including with respect to the malting industry.

227 As a general observation, putting the Cargill Parties' evidence at its highest, this case is clearly distinguishable from the circumstances before the Court of Appeal in Mobil Oil Australia Ltd v Guina Developments Pty Ltd.[261]

228 Be that as it may, I proceed on the basis that both Cargill, Inc and Glencore have substantial interests in, and compete within, the grain and other agricultural sectors in many common parts of the world. Further, there is a real prospect that sometime in the future Cargill, Inc and Glencore will have merger or acquisition targets in common, including possibly in the malting sector.[262]

229 There has never been any issue that the contents of the Confidential Documents are highly confidential.[263] As previously, I accept the Cargill Parties' submission that any loss of confidentiality has the potential to cause serious harm to Cargill, Inc. Self-evidently, documents relating to the value Cargill, Inc places on Cargill's Malt Business, together with details of the underlying rationale for that valuation and other related information, would be valuable to any prospective purchasers or joint venturers, and potentially harmful in Cargill, Inc's desire to obtain, reasonably, the best possible outcome for the Proposed Disposition.

230 Further, to the extent that the Confidential Documents contain details of synergies, forecasts with respect to the existing businesses or any proposed joint venture, proposed capital expenditure, actual gains and losses, long-term contractual commitments, margins, historical volumes, delayed input costs, strategic projects and the like, a breach of confidence with respect to that information has the potential to cause serious harm to Cargill, Inc.[264]

231 Plainly, if such highly sensitive documents were to be the subject of inspection by the principals or persons responsible for commercial decisions at Glencore, there would be serious issues as to whether or not it was necessary for the attainment of justice for such persons to have access to the Confidential Documents.[265] However, it is unnecessary to consider such issues for the purposes of determining this application. The sole issue for determination is whether or not Weber, himself, ought to be able to inspect the Confidential Documents in his particular circumstances at this point of the trial.

232 The fact that Weber resides overseas is no bar to an order for access. As set out by Whelan JA in the Appeal Reasons,[266] there is ample authority to support the proposition that, in appropriate circumstances, foreign-based in-house counsel ought to be given access to confidential documents discovered by an opposing party. Although the location of Weber has always been considered a relevant factor,[267] the real question is whether, taking into account his location, the particular circumstances pertaining to Weber make it appropriate or otherwise for him to be able to inspect the Confidential Documents.

233 Given that Weber is located in Switzerland, and is not admitted to practise in Australia but in the State of New York, the inability of this court to impose or oversee regulatory authority and control is a relevant consideration.[268] Further, there was no expert evidence of the operation of New York law to elucidate precisely how sanctions might be imposed if disciplinary action were taken or threatened in the State of New York by reason of any misconduct by Weber. Whether or not the particular rules would apply to Weber in whatever circumstances might arise,[269] it was accepted that Weber was the subject of ethical obligations and that it was important to Weber's professional reputation not to be the subject of sanctions.[270] Having observed Weber, and having considered his evidence, there can be little doubt that Weber would be extremely alert to doing anything that might adversely affect his professional reputation, which would include him being careful to ensure his professional obligations were met.

234 The evidence discloses that Weber performs a conventional in-house counsel role for Glencore.[271] The performance of his duties does not involve him engaging in, or being a part of, commercial decisions or the commercial decision-making process, except, with minor exception, in the most peripheral way.[272] Further, the structure adopted by Glencore with respect to the legal department of which Weber is a part supports and reinforces this conventional role.[273]

235 Consistent with this, Weber reports to the general counsel who is the head of his legal department.[274] Although he also reports to commercial management from time to time with respect to particular tasks,[275] it is relevant that his line of reporting includes to general counsel.[276] Further, in no way could Weber be properly described as forming part of the executive management of Glencore or any of its affiliates.

236 Furthermore, Weber has performed his current role for many years. He is an experienced and trusted adviser of Glencore. That level of trust is reflected in the fact that he has been given the responsibility of the conduct of this proceeding on behalf of the Viterra Parties. Given the amount of money involved and the very serious allegations made in this proceeding, it may be assumed that such a decision was not made lightly.

237 As part of this responsibility, Weber has been given authority to deal with opposing parties with respect to settlement discussions. Although, understandably, the extent of his authority has not been disclosed, Weber is authorised to make and accept offers within certain parameters, and to progress settlement discussions generally.[277] On the evidence, it would be inappropriate to describe him as a mere conduit between those with the relevant authority at Glencore and the external lawyers acting in this case, or as just another lawyer in a chain of lawyers.[278] Indeed, with respect to any prospect of settlement, because of his extensive knowledge of the issues in the case by reason of his direct involvement from the outset,[279] Weber is uniquely placed within Glencore, as well as when compared to those external to Glencore, to advise upon and facilitate any settlement discussions.

238 With respect to instructions to external lawyers, and experts (either directly or through the external lawyers), and giving advice to Glencore about the proceeding, Weber has played, and will continue to play, a pivotal role. He has had a "hands-on" approach to this role, including scrutinising tens of thousands of documents in order to seek to discharge his duties.[280]

239 Coupled with Weber's particular role in the conduct of this proceeding is Weber's experience and background both as in-house counsel for Glencore for approximately 10½ years, together with his earlier experience as a commercial lawyer advising on, amongst other things, mergers and acquisitions. The knowledge and experience gained by Weber includes his awareness of the commercial attitude and strategies of Glencore.[281] Although, as would be expected, Weber did not expand on his understanding of Glencore's forensic and strategic approach to this litigation,[282] it goes without saying that in-house counsel of Weber's background working in a legal department of a large organisation such as Glencore for many years would be highly likely to gain an appreciation of the forensic, strategic and general commercial approach of that organisation to litigation and related matters. For example, some organisations are more risk adverse than others. Further, different organisations take different approaches as to how they handle such matters. To reiterate, Weber is uniquely placed to consider these issues given his understanding of the proceeding, and of Glencore.

240 Much appeared to be made by the Cargill Parties of Weber's evidence that he was not involved in the "day-to-day" matters or "day-to-day" trading with respect to Glencore's grain business. In my view, when Weber's evidence is considered as a whole, there is little basis for the submission that this evidence ought to give rise to an inference that Weber had some undisclosed material involvement in commercial operations, or, whatever his involvement, that he was failing to disclose the extent of his activity in Glencore's grain business.[283]

241 As to the risk of inadvertent or accidental use or disclosure of information contained in the Confidential Documents, that risk necessarily increases every time the number of persons given access to the confidential information is increased.[284] In some circumstances, this risk might also be increased by reason of the "electronic age" in which we live.[285] But, naturally, the existence of the risk, in and of itself, cannot be a bar to access. A proper assessment needs to be made of any risk in the particular circumstances of the case as part of the balancing exercise involved.

242 In my view, with respect to each of the meanings of inadvertent or accidental disclosure,[286] the risk is relatively low. There are a number of reasons for this.

243 First, beyond his involvement in this proceeding, Weber rarely works on matters concerned with the grain industry or the agricultural sector more generally.[287]

244 Secondly, even if, in the near future, Glencore were to seek to acquire a business from within the grain sector, or a malting business, there is a real prospect that Weber would not be involved.[288] In any event, even if he were involved, given his role as conventional in-house counsel and his lack of any meaningful role in commercial decision-making, the risk of inadvertent or accidental disclosure would be minimal.

245 Thirdly, this is not a case where all legal work needs to be performed by a single in-house counsel. Given Glencore's size and the number of in-house counsel at its disposal,[289] if there were any likelihood of inadvertent or accidental disclosure arising if Weber were to be involved in a particular transaction, Weber would be perfectly capable of recognising that and alerting his superiors so that another in-house counsel could become involved to the extent necessary to avoid the risk.[290]

246 Fourthly, Weber is a very experienced lawyer who fully understands the gravity and nature of a confidentiality undertaking, whether to the court or otherwise. So much is demonstrated by his evidence concerning questions from other Glencore personnel in the past touching upon information that has been the subject of previous confidentiality undertakings.[291] Weber has demonstrated he is perfectly capable of handling these situations, and there is no reason why the court ought not fully expect he will able to handle them properly in the future.

247 Even if the risk is greater than I have assessed it, on no view of the evidence could the risk be properly considered to be so serious as to make it an unacceptable risk when viewed in the context of all the relevant factors disclosed on this application.

248 To the possible contention that, because of the volume of documentation involved, Weber could not be certain as to whether or not he had breached his confidentiality undertaking in the past,[292] there is little substance to this point. There is no suggestion that Weber, or any other lawyer who has given the confidentiality undertaking, is not capable of comprehending the scope of the information involved. Further, experienced lawyers are often presented with large amounts of confidential information that are the subject of restrictions which it is reasonably expected they will maintain. The evidence shows that Weber himself has been placed in this position in the past, including in this proceeding.[293]

249 With respect to the relevance of the Confidential Documents to any settlement of this proceeding, self-evidently documents concerning the amount of any loss suffered are relevant to any assessment of any settlement proposal.[294]

250 As was stated by the majority, "irrespective of whether there had been prior settlement discussions [or, I interpolate, presently ongoing settlement discussions], settlement is a common feature of commercial litigation and the parties have an overarching obligation to use reasonable endeavours to resolve disputes".[295] The Cargill Parties' reliance upon the absence of evidence of a "real desire or intention" to engage in settlement discussions is of only minor significance. Intentions with respect to settlement are normally expressed without prejudice. Further, for the court to come to the conclusion that, given the overarching obligations imposed under the Civil Procedure Act, there was not a desire on the part of the parties to reach a satisfactory commercial result to this very expensive, and presumably disruptive, proceeding would require some probative evidence. There is no evidence to that effect.

251 Weber has given evidence that, amongst other reasons, he wishes to have access to the Confidential Documents for settlement purposes. There is no good reason why this should not be taken at face value.

252 On the evidence, there is no proper basis to make a specific finding as to whether or not settlement discussions might be compromised if Weber were not given access to the Confidential Documents. No such finding either way is necessary. For reasons discussed,[296] Weber has a unique role in this litigation with respect to understanding the issues in the proceeding and understanding Glencore's position more generally. If settlement of this litigation is to progress, it would be highly likely that Weber would be the person performing "much that is needed to be done to promote settlement" before any settlement is reached.[297] Thus, Weber ought to have documents relevant to assessing any settlement proposals, including the Confidential Documents.

253 In the context of the relevance of the Confidential Documents to settlement, the Cargill Parties submitted it is necessary to consider whether others at Glencore, to whom Weber reports, have similar knowledge of the commercial and strategic factors of which Weber is aware. The Cargill Parties did not nominate who these persons might be. Regardless, the submission does not advance the Cargill Parties' position.

254 First, whomever is being referred to also, necessarily, does not have access to the Confidential Documents.[298] Secondly, there is no suggestion that anyone employed by Glencore has the same or even a remotely similar understanding of the issues in this proceeding to Weber's understanding.

255 As to the absence of an undertaking from the Viterra Parties or Weber as to his future involvement in relation to grain trading, including barley, or future transactions in agriculture by way of acquisitions, divestments or joint ventures, I have taken the absence of such an undertaking into account.[299] For reasons already discussed,[300] the likelihood of Weber being in a position to have a material role with respect to the grain sector or the agricultural industry more generally appears quite remote. Even if this position is incorrect, and Weber were to have some significant involvement in the foreseeable future, Weber would be perfectly capable of determining whether or not issues may arise with respect to his involvement in such transactions in light of Weber's Undertaking, and of taking appropriate steps.[301]

256 On the question of undertakings, I have been invited to reconsider whether there is a significant difference between an implied undertaking to the court by reason of inspection of compulsorily produced discovered documents and an undertaking to the court as to confidentiality.[302]

257 In some respects, this factor is historical, referring to the different approaches of the Viterra Parties between the hearings giving rise to Ruling No 13 and Ruling No 16. Accordingly, I will deal with it briefly.

258 An implied undertaking to the court requires the person the subject of that undertaking to only use the information disclosed for the purposes of the proceeding.[303] Although a breach of this undertaking is punishable by contempt, the nature of the undertaking is less restrictive than Weber's Undertaking. Weber's Undertaking not only precludes Weber from using the information in the Confidential Documents for purposes other than those of the proceeding, but also confines the disclosure of the information to those specified in paragraph (1) of Weber's Undertaking.[304] In particular, Weber's Undertaking requires him not to disclose the information to other employees of the Viterra Parties. No such restriction is required by reason of an implied undertaking.[305] In short, the difference between the 2 undertakings is significant. That said, little turns on this as the present exercise is to consider whether access ought to be granted in the current circumstances, including where Weber has given Weber's Undertaking.

259 With respect to whether Weber requires access in respect of the outstanding application to narrow the 19 July Orders (which orders were not the subject of any application for leave to appeal), the vested right created by those orders is a right of the Viterra Parties.[306] In the circumstances, there is no proper reason why the Viterra Parties' external lawyers ought not be entitled to take instructions before acceding to a limitation on the operation of orders previously made after a contested hearing, which limitation would deprive the Viterra Parties and their representatives from documents relevant to the proceeding.

260 Further, it is no answer to invite the court to simply treat the application to limit the 19 July Orders as being opposed on all issues because of the inability of the Viterra Parties' external lawyers to take proper instructions.[307] This submission runs contrary to the overarching obligations, which require the court, as well as the parties, consistent with the due administration of justice, to narrow the issues in dispute wherever appropriate.[308]

261 In any event, given Weber's experience and knowledge,[309] it could not be assumed that the external lawyers would be in a position to raise all matters that Weber would consider relevant with respect to a contested hearing regarding the proposed narrowing of the 19 July Orders.

262 As to the tender of some of the Confidential Documents, the Cargill Parties have queried whether it is necessary for Weber to have access to all the Confidential Documents. There are a number of responses to this.

263 First, senior counsel stated that the Cargill Parties' position was that the documents should not be considered separately (with the exception of documents 4 and 50).

264 Secondly, it would not be satisfactory to confine Weber's access only to those documents that the parties have chosen to tender. As to the Cargill Parties, presumably the documents tendered were on the limited basis that they considered those documents relevant to advancing their case or to harming the Viterra Parties' case, or both. As to the Viterra Parties, the documents they have chosen to tender were without the benefit of instructions as to which of the Confidential Documents, including those not tendered, ought to be tendered.

265 Thirdly, the court cannot be satisfied that the external lawyers or the independent expert are capable of fully appreciating the significance of the Confidential Documents without Weber's involvement. In light of Weber's evidence, the contrary position must be found. This applies regardless of the basis of the tender, the nature, provenance and date range of the tendered documents and the role or potential role of those documents in the wider proceeding (particularly in light of the Cargill Parties' position that the Confidential Documents ought not be considered individually by the court in determining the outcome of this application).

266 With respect to confidential information relating to a third party or third parties, this has been dealt with in Ruling No 16.[310] In any event, having had the benefit of the further matters raised on the rehearing, I remain of the view that the considerations of the due administration of justice in the conduct of this proceeding mean that any private arrangements with respect to non-disclosure ought to yield to access being granted in the limited circumstances proposed. For the reasons expressed with respect to the Cargill Parties, the confidential information of any third party would be sufficiently protected by the limitations and undertakings proposed.

267 For completeness on this topic, the Cargill Parties' position on this issue is problematic. First, notwithstanding ample time in which to assemble such materials, no evidence was put forward by any third party, either directly or through the Cargill Parties on information and belief, expressing concern about disclosure under compulsion of an order of the court.[311]

268 Secondly, the evidence of Savona went no higher than stating she had been informed by another employee of Cargill, Inc, Frank van Lierde,[312] that he was of the opinion that disclosure of the documents would jeopardise Cargill, Inc's relationship with third parties and would have the effect of making those parties disinclined to continue to participate in this sale process.[313]

269 Thirdly, and in any event, the fact that parties choose to sign non-disclosure agreements does not result in confidential documents being beyond the court processes and procedures. Even accepting the evidence of the Cargill Parties in an unqualified manner with respect to the position of the third parties, the court has the ultimate responsibility to ensure the due administration of justice in the conduct of a proceeding before it.

270 Fourthly, introducing the regime proposed by the Cargill Parties[314] will provide yet another basis for the parties to engage in interlocutory disputes in a trial that commenced over 5 months ago, and a proceeding that was instituted over 4 years ago. The history of this matter suggests it is highly likely any such regime would lead to further interlocutory disputes, with the delays to the trial that would necessarily follow.[315]

271 As to the position with respect to Fitzgerald,[316] I propose to refrain from considering this issue further. On the previous occasion, I took it into account by reason that an open offer was the subject of evidence before the court, demonstrating a willingness of the Cargill Parties to disclose the Confidential Documents to Fitzgerald. In circumstances where that offer has now been withdrawn, I will not take it into account as a factor weighing in favour of disclosure.

272 As to the forum of this litigation, the Cargill Parties submitted the fact that Cargill Australia decided to sue Glencore, which is located in Switzerland, was not a relevant factor because the jurisdiction for the litigation was determined by the terms of the Acquisition Agreement and a confidentiality deed executed by the parties before the Acquisition Agreement was entered into. Both these documents have "governing law" provisions stating New South Wales and Victoria (respectively) were the jurisdictions to which the parties exclusively submitted. Further, it was submitted that the Confidential Documents were not documents of Cargill Australia, but Cargill, Inc and that Cargill, Inc was only a party by reason that the Viterra Parties chose to join it as a third party.

273 This matter is of little moment. The Confidential Documents relate to the loss claimed by Cargill Australia. Whether they are documents of Cargill, Inc or Cargill Australia does not alter the fact that they would be discoverable whether or not Cargill, Inc was a party.

274 Further, and in any event, whatever the governing law clauses of the transactional documents state, the Cargill Parties chose to deal with a multi-national organisation, based in Switzerland, in deciding to purchase Joe White. Thus, it would have been foreseeable that there was a real possibility of future litigation in such a large transaction, with at least 1 defendant located overseas.

275 Furthermore, as stated in Ruling No 16,[317] Cargill, Inc and Cargill Australia decided that Cargill Australia would sue Glencore, a foreign corporation, in this jurisdiction. They were under no obligation to sue. A likely consequence of choosing to sue in this jurisdiction was that, in the ordinary course, information concerning the proceeding (whether or not there were third party proceedings) would need to be considered by persons who reside outside the jurisdiction.

276 That having been said, this particular matter seems to be of minor weight when considering the large number of other significant factors involved. Nonetheless, to the extent that the governing law clauses dictate the jurisdiction for any proceedings, that matter has been taken into account.

277 With respect to documents 4 and 50, I stated the following in Ruling No 16:[318]

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 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.

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,[319] 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.

278 Assuming, without deciding, that the Cargill Parties have the ability to revisit this discrete issue in light of their lack of success on the point before the Court of Appeal,[320] it suffices to say that none of the further evidence or submissions has altered my view with respect to what was set out in Ruling No 16.

279 On both 12 and 13 September 2018, the parties were unable to agree as to the access regime to be ordered.[321] As noted in Ruling No 16,[322] the access regime ordered on 14 September 2018 was largely in accordance with the Cargill Parties' proposed regime if access were to be other than by way of inspection of hard copy documents.

280 In my view, it would be inappropriate to limit access to the physical inspection of hard copy documents.[323] The volume of the Confidential Documents is not insignificant. They include sizeable spreadsheets. To only allow hard copies to be inspected at solicitors' offices would be to adopt a course which would be far less efficient than other options available. Of course, the ability to conduct the inspection itself in an efficient manner is also enhanced by electronic access. There is the ability to search and arrange the documents in a way that is not available with hard copy documents. As to any increased risks of Weber's Undertaking being breached if electronic access is given, the Cargill Parties' own evidence demonstrates that the regime proposed has the necessary attributes of secure protection of the relevant information.[324]

281 In the circumstances, where there is a secure means of providing access electronically (as previously ordered),[325] there is no legitimate basis for restricting access to physical inspection of hard copy documents.

282 As would be apparent from what has been set out above, in my view, when balancing all the competing factors set out above, including the protections discussed, they weigh overwhelmingly in favour of access being given to Weber on a confidential basis. To be clear, having considered each of the factors identified by the Cargill Parties,[326] with the exception of those concerning Fitzgerald,[327] I am of the opinion that it is in the interests of the due administration of this proceeding for Weber to be granted access to the Confidential Documents for each of the litigation purposes identified above.[328]

283 Consistent with the manner in which the Cargill Parties put their submissions,[329] this conclusion has been reached without taking into account any evidence led at trial concerning the involvement of Cargill, Inc or Glencore in the grain sector (or the agricultural industry more generally) or the decision-making processes of Cargill, Inc.[330] When those matters are taken into account, the conclusion is reinforced. The fact that the Cargill Parties have already given evidence openly on such topics weakens the claim for confidentiality as against Weber. Further, insofar as the Confidential Documents are concerned with Cargill, Inc's decision-making processes, this strengthens the Viterra Parties' claim for Weber to have access to assess the information, as not only has that topic been the subject of evidence at trial, but it has the potential to be relevant to a number of issues in this case.

284 On 11 September 2018, after considering all the matters then before the court, I pronounced a ruling that Weber would be granted access to the Confidential Documents upon the giving of a confidentiality undertaking to the court. For the reasons stated in Ruling No 16, I was firmly of the view that, in applying the applicable legal principles, the due administration of justice required such access to be given.

285 Having reheard the application, and having taken into account all the matters now before the court, including the further evidence and submissions, the changes to the parties' previous positions as reflected in those submissions, and having had the benefit of the Appeal Reasons, in exercising my discretion afresh, I remain of the view that access must be granted to Weber. Indeed, my view is firmer than that previously held, particularly in light of the further evidence of Weber and the undertaking as to damages to be given by the Viterra Parties.

286 Subject to any further submissions the parties may wish to make with respect to the electronic access regime proposed,[331] upon the reaffirming or giving of the required undertakings, orders will be made accordingly.

VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)

CARGILL, INCORPORATED AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)

I, Mr 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.

VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)

CARGILL, INCORPORATED AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)

Defendants' summons dated 30 August 2018 (Access Summons)

1. Upon Mr Matthew Michael Weber ("Weber") giving an undertaking to the court substantially in the form annexed to these orders ("the Undertaking"), Weber shall be permitted to inspect the documents listed in Schedules 1 and 2 in the list of documents dated 22 August 2018 and any further documents discovered or otherwise produced by the Cargill Parties pursuant to the orders made by the Honourable Justice Elliott on 19 July 2018 ("the Confidential Documents") on the terms set out in paragraphs 2, 3 and 4 below.
2. The Confidential Documents are to be made available to Weber through a data room hosted by Intralinks Inc ("the Data Room") on the following basis:
   • (1) The defendants' solicitors ("King & Wood Mallesons") are to act as administrators of the Data Room.
   • (2) Solicitors of King & Wood Mallesons who have signed confidentiality undertakings in the form annexed to the orders made by the Honourable Justice Elliott on 7 August 2018 ("the Orders") are released from those undertakings to the extent necessary to load the Confidential Documents into the Data Room.
   • (3) Solicitors of King & Wood Mallesons, external counsel and independent experts who have signed confidentiality undertakings in the form annexed to the Orders are released from those undertakings to the extent necessary to:
     • (a) Show the Confidential Documents to Weber at the offices of King & Wood Mallesons.
     • (b) Disclose the contents of the Confidential Documents to Weber in discussions with him.
     • (c) Upload into the Data Room any communications which contain the Confidential Documents or any part of them.
   • (4) The settings of the Data Room are to be set so that documents are watermarked "confidential", cannot be printed, downloaded, emailed or have screenshots taken of them.
   • (5) The Cargill Parties will not seek access to data concerning Weber's activity within the Data Room without prior leave of the court.
3. While Weber is in Australia, he is also able to inspect the Confidential Documents at the offices of King & Wood Mallesons upon the terms set out in the Undertaking.
4. Documents containing information which is confidential to one or more third parties are to be made available to Weber in the Data Room subject to the following:
   • (1) The Cargill Parties will provide to the defendants by [DATE]:
     • (a) A list identifying the documents which are asserted to include information confidential to one or more third parties.
     • (b) A statement as to whether any such third party has consented to the disclosure of that information to Mr Weber on the terms of these orders.
   • (2) If the third party does not consent, the Cargill Parties are to provide by [DATE] a copy of the document with the third party confidential information redacted, and only the redacted version of the document will be uploaded to the Data Room.
5. Upon Ken Iwata of King & Wood Mallesons' IT department ("Iwata") and any other persons from King & Wood Mallesons' IT department assisting him ("the Assistants") signing a confidentiality undertaking in the form annexed to the Orders, Iwata and any of the Assistants shall be permitted to inspect the Confidential Documents to the extent necessary:
   • (1) To upload the Confidential Documents to the Data Room.
   • (2) In the performance of King & Wood Malleson's duties as administrator of the Data Room.

1. Costs are reserved.
2. There is liberty to apply.

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

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

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

[1] As to a more precise meaning of "Confidential Documents", see pars 162, 168(1) below.

[2] Now known as Cargill Malt Asia Pacific Pty Ltd.

[3] The Previous Access Orders included:

1. Upon Matthew Michael Weber ("Weber") giving an undertaking to the court substantially in the form annexed to these orders ("the Undertaking"), Weber shall be permitted to inspect the documents listed in Schedules 1 and 2 of the list of documents dated 22 August 2018 and any further documents discovered or otherwise produced by the Cargill Parties pursuant to the orders made by the Honourable Justice Elliott on 19 July 2018 ("the Confidential Documents") on the terms set out in paragraphs 2 and 3 below.

2. The Confidential Documents are to be made available to Weber through a data room hosted by Intralinks Inc ("the Data Room") on the following basis:

(1) The defendants' solicitors ("King & Wood Mallesons") are to act as administrators of the Data Room.

(2) Solicitors of King & Wood Mallesons who have signed confidentiality undertakings in the form annexed to the orders made by the Honourable Justice Elliott on 7 August 2018 ("the Orders") are released from those undertakings to the extent necessary to load the Confidential Documents into the Data Room.

(3) Solicitors of King & Wood Mallesons, external counsel and independent experts who have signed confidentiality undertakings in the form annexed to the Orders are released from those undertakings to the extent necessary to:

(a) Show the Confidential Documents to Weber at the offices of King & Wood Mallesons.

(b) Disclose the contents of the Confidential Documents to Weber in discussions with him.

(c) Upload into the Data Room any communications which contain the Confidential Documents or any part of them.

(4) The settings of the Data Room are to be set so that documents are watermarked "confidential", cannot be printed, downloaded, emailed or have screenshots taken of them.

(5) The Cargill Parties will not seek access to data concerning Weber's activity within the Data Room without prior leave of the court.

(6) Intralinks Inc's charges for hosting the Data Room are to be met by the Cargill Parties in the first instance or, if Intralinks Inc will only issue its invoices to the defendants (or King & Wood Mallesons), then the Cargill Parties will reimburse those costs within 14 days of receipt of a copy of the invoice, with the court reserving whether the costs of the Data Room are recoverable in the proceeding.

3. While Weber is in Australia, he is also able to inspect the Confidential Documents at the offices of King & Wood Mallesons upon the terms set out in the Undertaking.

4. Subject to further order, paragraphs 1, 2 and 3 above are stayed until 4:00 pm on 19 September 2018.

5. Upon Ken Iwata of King & Wood Mallesons' IT department ("Iwata") and any other person from King & Wood Mallesons' IT department assisting him ("the Assistants") signing a confidentiality undertaking in the form annexed to the Orders, Iwata and any of the Assistants shall be permitted to inspect the Confidential Documents to the extent necessary:

(1) To upload the Confidential Documents to the Data Room.

(2) In the performance of King & Wood Mallesons' duties as administrator of the Data Room.

[4] Weber's Undertaking was given, through Glencore's counsel, on 14 September 2018 and is attached as annexure "A" to these reasons.

[5] The confidentiality undertakings were not given to the court, but to the Cargill Parties.

[6] See fn 3 above, order 2. That secure data room was ordered after further submissions from the parties: see pars 157-158 below.

[7] In addition to the ultimate parent company, Glencore, the defendants are Viterra Malt Pty Ltd, Viterra Operations Ltd and Viterra Ltd.

[8] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 16) [2018] VSC 529.

[9] See fn 3 above, order 4.

[10] Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 (Kyrou and McLeish JJA, Whelan JA dissenting).

[11] At [224] (Kyrou and McLeish JJA).

[12] See Ruling No 16, [19], [28]-[29].

[13] One of them, Peter Youil, remains an employee of Joe White.

[14] Breszee is, and at all material times was, technical accounting director within the centre of expertise of Cargill, Inc.

[15] For a more detailed account of these circumstances, see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [2], [21]-[25].

[16] At the start of the trial, the Cargill Parties sought to lead evidence in a manner that protected the alleged confidentiality about certain aspects of Cargill Australia's malting business. The Cargill Parties were directed to make an application under the Open Courts Act 2013 (Vic) by a specified time, otherwise the court would not allow evidence to be led other than openly. No application was made and the court was informed that the Cargill Parties did not seek to maintain their position with respect to the aspects of Cargill Australia's business previously the subject of a confidentiality claim.

[17] Senior counsel for the Cargill Parties stated that the Cargill Parties did not rely upon any evidence at trial and were content for the court to confine itself to the evidence put forward specifically for the purposes of this application.

[18] Orders have been made on 19, 21, 26 and 27 June 2018, 2, 4, 10, 18, 19, 26 and 31 July 2018, 2, 6, 7 (x2), 15, 17, 21, 28, 29 and 30 August 2018 (x2), 5, 10, 12, 14, 19 and 21 September 2018, 1, 8, 10, 15, 16 and 24 October 2018.

[19] See Civil Procedure Act 2010 (Vic), s 7.

[20] The defendants filed submissions on 30 August 2018 (which adopted and relied upon some earlier submissions made on 21 August 2018) and 11 September 2018, the latter provided by email at 10.11 am, for the 2.00 pm hearing. The Cargill Parties filed submissions on 4 September 2018. At the hearing on 11 September 2018, the parties were informed that the court had read each of the parties' submissions.

[21] At the time of the rehearing, there was 1 further witness who was described as an expert, but gave his evidence, on 21 November 2018, other than pursuant to the expert code of conduct.

[22] There is yet another interlocutory application which cannot be heard and determined until the outcome of this application is known: see fn 30 below.

[24] This was the revised date. Initially, the trial was scheduled to commence in early May 2018 and finish in early August 2018.

[25] Regrettably, the delivery of this ruling has also been delayed by reason that I was required to hear another trial fixed for hearing in the week commencing 29 October 2018.

[26] The order for the stay to lapse on 19 September 2018 was made pursuant to an agreement between the parties: see fn 3 above.

[27] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433.

[28] See par 13 above.

[29] See par 14 above.

[30] This is with respect to the discovery to date. There are ongoing discovery obligations and the Cargill Parties acknowledge further documents must be discovered, but the precise ambit of the further discovery required is the subject of another interlocutory application which is awaiting the final determination of this application: see pars 54-56, 99, 144, 204(17), 220(29) below.

[31] The orders as originally made were subsequently varied at the request of Cargill Australia, and without opposition from the Viterra Parties. The orders as set out above are the orders made as varied.

[32] [1940] HCA 43; (1940) 64 CLR 282, 299.6 (Dixon J).

[33] For an explanation of these different approaches, see Ruling No 9, [43]-[47], [50]-[52].

[37] The Cargill Parties' counsel described this as "perhaps an odd choice of words", and submitted they were intended to refer to being able to "compete in a sale process".

[38] The Discovery Application is a reference to the application detailed in par 27 above.

[39] The Confidentiality Application is a reference to the application detailed in par 26 above.

[45] See par 31 above.

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

[47] "Meredith, Klein and Potter" is a reference to the loss or damage experts retained in the case.

[50] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 16) [2018] VSC 529, [11]-[12].

[53] Appeal Reasons, [71], [141] (Kyrou and McLeish JJA).

[54] During the course of the hearing on 21 August 2018, the Cargill Parties stated that they did not maintain their claim for confidentiality with respect to Savona's affidavit.

[55] Ruling No 13, [13]. See also Ruling No 16, [21].

[56] See Appeal Reasons, [69] (Kyrou and McLeish JJA).

[57] At the time the affidavit was sworn, Cargill's Malt Business had no open contracts for the purchase of barley from Glencore. No evidence has been subsequently led to suggest this position has changed.

[60] The Viterra Parties filed an affidavit of Zoe Justice, affirmed 10 July 2018, giving evidence as to the relevance of the Initial Confidential Documents.

[61] See Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212, [30] (Redlich and Priest JJA and Macaulay AJA); Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 384-385 [63]-[64] (Heydon, Crennan and Bell JJ); Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308.5 (Kitto J), 312.6 (Menzies J), 320.8-321.2 (Windeyer J). The principle established in these cases applies to interlocutory hearings in which facts are required to be found: Bray v F Hoffman-La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1, 41 [128] (Merkel J), and the cases there cited.

[62] Ruling No 13, [16]. Cf Appeal Reasons, [178] (Kyrou and McLeish JJA).

[63] As to the appropriateness of drawing inferences in the absence of evidence, see Ruling No 16, [10]-[11].

[67] [2014] FCA 549 (Besanko J).

[68] [2006] FCA 1358 (Lindgren J).

[70] In the note provided after the hearing, with respect to the finding in Ruling No 13, [8], that Fitzgerald was an employee of Glencore, the Cargill Parties stated they did not know with certainty whether or not this was the case. However, for the reasons submitted during the course of the hearing, they stated that whether or not Fitzgerald was an employee of Glencore was of no moment on this application. That is plainly correct in circumstances where the open offer for Fitzgerald to have access has been withdrawn.

[72] See pars 21-24 above.

[73] See further pars 21 above and 72 below.

[76] For completeness, I noted that the Confidential Documents had also been provided to the Viterra Parties' loss or damage expert, who was also not in a position to advance any settlement discussions.

[78] As submitted by the Cargill Parties to the Court of Appeal: Appeal Reasons, [188] (Kyrou and McLeish JJA).

[79] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 5) [2017] VSC 798, [10]-[11].

[80] Cf Appeal Reasons, [1] (Whelan JA, dissenting), [189]-[190] (Kyrou and McLeish JJA).

[87] See also fn 21, [25(2)], [25(3)].

[88] In cases where a ruling or judgment is delivered promptly, an appellate court is entitled to assume that merely because evidence has not been expressly referred to does not mean the evidence has been overlooked: see, for example, Braham Investments Pty Ltd v Wantrup [2018] VSCA 291, [226] (Whelan, Kyrou and McLeish JJA).

[89] Both on this rehearing and previously on 11 September 2018.

[90] Appeal Reasons, [173] (Kyrou and McLeish JJA). See also [179].

[91] See further par 98 below. For completeness, this position ultimately adopted by the Cargill Parties conflicts with the position adopted in their written submissions, where they cited the Appeal Reasons at [173] and said they relied upon the purported concession.

[93] Senior counsel for the Cargill Parties suggested the proffering of the hypothesis by the Court of Appeal and the submission in response explained "how there was at least room for misunderstanding on the part of the learned majority in the Court of Appeal".

[94] See also par 84 below.

[95] See also pars 180-181 below.

[96] This same submission was made to the Court of Appeal.

[97] See pars 94-95 below.

[98] To use the language of the Cargill Parties' counsel. For further detail, see par 156 below.

[99] The Court of Appeal was told that Weber was in court "pretty much every day".

[100] The Viterra Parties have 3 senior counsel appearing at trial (and 2 different senior counsel for interlocutory matters as well as trial senior counsel on occasion), together with many juniors.

[101] See, for example, par 204(9), (10) and (11) below.

[102] This acknowledgment was premised on "if that evidence [of Weber] is accepted". There was no real issue that Weber was and remains responsible for the conduct of the proceeding on behalf of Glencore.

[103] The Viterra Parties submitted such an exercise was unnecessary on a "simple matter of practice and procedure" arising during the course of the trial, and that the court should not "stoop" to deal with the majority's observations. However, the Cargill Parties did not accede to this approach when the matter was raised.

[104] Appeal Reasons, [152] (Kyrou and McLeish JJA).

[105] See par 61 above.

[106] Footnote 31 referred to Ruling No 13, [10].

[108] Cf Appeal Reasons, [2], [41]-[42] (Whelan JA, dissenting).

[109] Barley was expressly referred to 7 times and grain was referred to 4 times. The last reference to barley was in the Cargill Parties' submissions in reply, in which it was confirmed that the Cargill Parties relied upon Savona's 21 August 2018 affidavit to the effect that the Confidential Documents do "contain that information about barley".

[111] Paragraph 33 referred to Glencore's "'day-to-day' grain transactions", Weber's involvement and what his affidavit "does not say" (see also Ruling No 16, [25(5)], which expressly referred to this submission); par 34 referred to Glencore's "grain deals" and the absence of an undertaking from Weber not to be involved in such deals in the future (see also Ruling No 16, [24(6)], which expressly referred to this submission); par 36 referred to Cargill, Inc's and Glencore's competing in allied markets "particularly grain", as well as Glencore's intention to grow its agricultural unit, including its "grain business".

[113] As to Savona's evidence, see Appeal Reasons, [69] (Kyrou and McLeish JJA).

[114] Cf Ruling No 16, [25(5)] and the reference to the Cargill Parties' submission concerning what Weber's 30 August 2018 affidavit "did not say". See also pars 204(9) and 220(14), (15) below.

[115] Appeal Reasons, [156] (Kyrou and McLeish JJA).

[116] See pars 22-23, 61 above.

[117] Appeal Reasons, [163]. See pars 53-58 above.

[118] See par 61 above.

[124] To quote from Ruling No 13, [18].

[125] This is the language used in the Cargill Parties' submissions; see also Ruling No 16, [24(3)].

[126] See pars 53, 63-64 above.

[128] The majority stated that the Cargill Parties submitted to the Court of Appeal that the evidence was subject to an objection: Appeal Reasons, [167]; see also proposed ground 2 of the application for leave to appeal: Appeal Reasons, [164]. The evidence given by Mattiske was directly responsive to the question that had been asked of him. Although objection was taken by the Cargill Parties to the answer given insofar as it referred to money having been offered, objection was also taken by the Viterra Parties to the Cargill Parties' objection in light of the way in which the question had been framed: see Appeal Reasons, [166]. The court was not asked to rule on the matter, and the evidence was not the subject of any ruling as to its admissibility or otherwise. Further, the issue of the objection was not raised with me on 11 September 2018. On the contrary, the Cargill Parties' counsel submitted that "[o]ther than the evidence [of Mattiske], no party has put on evidence of that matter". There was no submission on 11 September 2018 that the evidence was irrelevant or could not be taken into account because of any claim for without prejudice privilege.

[130] See pars 63-64 above.

[132] See par 91 below. See also par 121 below.

[135] Cf observations by Whelan JA, Appeal Reasons, [44], and the cases there referred to. See also pars 58, 66-68 above.

[137] See pars 46-47, 49, 53, 58, 63-69, 81 above.

[138] This was referred to in Ruling No 16, [14]: see par 53 above.

[139] Appeal Reasons, [171], [174].

[140] See pars 66-68 above and 94 below.

[142] See pars 46-49 above.

[147] The evidence before the court was that Fitzgerald has oversight of this litigation on behalf of the Viterra Parties, except Glencore.

[149] On 11 September 2018, it was submitted by the Cargill Parties that if the court were against them on the question of access, then they thought it was correct that the Viterra Parties were proposing an opportunity to be given to identify third party confidential information and ascertain the attitude of the third party or parties to disclosure of information concerning them. After this submission was put, nothing was put in response by the Viterra Parties to suggest this was not an agreed position. On the rehearing, the Cargill Parties stated they regretted that it seemed there may have been a miscommunication on the previous occasion.

[150] See Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 40.04.

[151] Towards the end of the Viterra Parties' submissions, senior counsel submitted the evidence given by Weber under cross-examination had strengthened the case for Weber having access to the Confidential Documents. Further, senior counsel indicated that, in circumstances where the Viterra Parties sought to rely upon this evidence, they no longer required any reasons as to why leave was granted to cross-examine: as to the relevant authorities, see Ahmet v Jardine [2014] VSCA 52, [25] (Warren CJ and Whelan JA); Matthews v SPI Electricity Pty Ltd (No 6) [2013] VSC 422, [23]-[29] (Derham AsJ); Yunghanns v Elfic Pty Ltd [2000] VSC 113; (2000) 1 VR 92, 97-98 [17]-[18] (Warren J).

[152] The Cargill Parties' senior counsel expressly acknowledged no criticism was made of Weber as to his credit.

[153] See also Ruling No 16, [25(4)].

[154] This explanation was not given in Weber's 30 August 2018 affidavit, and does appear to not align entirely with par 35 of that affidavit. That paragraph stated that Weber was not required to maintain "active status" because he was not employed by a law firm. However, as this was not raised in cross-examination, I say nothing further on the matter.

[155] He said his business card had his name on it, but no title.

[156] Cf Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 39.7 (Hayne JA, with whom Winneke P and Phillips JA agreed).

[157] See pars 92-95, 104, 109 above.

[158] This evidence may be contrasted with Savona's evidence to the effect that, in her experience, it was not unusual for in-house lawyers to be excluded from confidential information in commercial transactions, including with respect to the sale of Joe White to Cargill Australia. This specific matter was not put to Weber, and, in any event, this arrangement did not concern Weber being excluded as he was acting for the vendors in the sale of Joe White.

[159] By giving this evidence, I did not understand Weber to be excluding the possibility of using the Confidential Documents for settlement purposes.

[160] Chris Mahoney was involved in the negotiations for the sale of Joe White and is the director of the agricultural products division of Glencore.

[161] See pars 98-99 above.

[162] As there was no objection to the question, I noted at the time that I allowed the question to be put and answered.

[163] Obviously, this evidence was subject to what Weber had learnt by reason of his involvement in this proceeding.

[164] See par 163 below.

[165] See par 99 above.

[166] This matter was ultimately not pressed by the Cargill Parties: see par 198 and fn 235 below.

[167] See pars 30-31 above.

[168] At pars 41-45 above.

[169] See fn 158 above.

[170] The Cargill Parties expressly stated that they made no submission suggesting Weber's evidence about compliance with his earlier confidentiality undertakings should not be accepted. This position is to be contrasted with the Cargill Parties' submission on 11 September 2018 that the court ought to be "cautious in being confident" about Weber's evidence concerning his previous compliance and his evidence that he had not engaged in inadvertent disclosure. See further par 180(9) below.

[171] Weber swore that when issues touching on confidential information have been raised by Glencore employees in the past, he has informed those employees that he could not discuss such matters because he was bound by a confidentiality undertaking not to do so.

[172] See also pars 77-78, 89, 96, 140 above.

[173] See pars 100-127 above.

[174] See further pars 73, 118 above.

[175] The Cargill Parties submitted this rule did not apply because of matters set out in rule 8.5(b)(2)(i) and (ii). This seems to be a highly unlikely construction of the rule, but it is unnecessary to determine the construction point in order to decide the outcome of this application, particularly in light of the concession made on this issue: par 127 above.

[176] For completeness, the Cargill Parties filed 2 affidavits on 27 August 2018 with respect to their compliance with the 19 July Orders, sworn by Savona and Whiting.

[177] See par 60 above.

[178] The confidentiality regime was contained in a document entitled "Protocol for the exchange of documents and data" annexed to orders made on 21 August 2015.

[179] See par 144 above.

[180] See par 149 above.

[181] See par 1 above. See also Ruling No 16, fn 37.

[182] For completeness, with respect to the issue of security, an email was forwarded to the court at 9.37 am on 12 September 2018 by the Cargill Parties concerning proposed security arrangements, including the cost of those arrangements. It is unnecessary to discuss this further.

[183] Noting it was the Cargill Parties' primary submission at that time that, if the court were to grant access to Weber, "it be on the same terms as were offered by [the Cargill Parties] in relation to [Fitzgerald]".

[184] Appeal Reasons, [6] (Whelan JA, dissenting), [65] (Kyrou and McLeish JJA)). See also Ruling No 13, [11]; Ruling No 9, [40].

[186] See par 201 below.

[187] See par 54 above and fn 229 below.

[188] See, for example, Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 3) [2011] FCA 793, [3] (Perram J).

[189] [1996] VicRp 54; [1996] 2 VR 34 (Hayne JA, with whom Winneke P and Phillips JA agreed).

[190] The successful bidder comprised 2 corporations, Mobil Oil Australia Ltd and McDonald's Australia Ltd.

[192] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 37.7, 39.7.

[193] But also see par 162 above.

[194] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 35.10.

[195] Cf Arab Monetary Fund v Hashim (No 2) [1990] 1 All ER 673, 681h (Hoffmann J).

[196] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 41.4.

[197] Ibid, 41.3. This point was touched upon by Whelan JA, [8] third bullet point.

[200] Quoting from Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.7.

[202] The Cargill Parties expressly acknowledged this. See, for example, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.4 (Hayne JA, with whom Winneke P and Phillips JA agreed); Hadid v Lenfest Communications Inc (1996) 70 FCR 403, 410C (Hill J); Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354, 359.9-360.8 (Buckley LJ, with whom Russell and Orr LJJ agreed).

[203] Cf Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 3) [2014] FCA 983, [23]-[25] (Yates J); Hadid v Lenfest Communications Inc (1996) 70 FCR 403, 410C.

[204] Cargill No 16, [9] and the cases there referred to; Cargill No 13, [17] and the cases there referred to.

[205] In many cases, even these steps are not considered necessary and the parties to the litigation are content to rely upon the implied undertaking each party gives, when inspecting compulsorily discovered documents, that the confidential information disclosed will not be used (without leave of the court) for any purpose other than the proceeding in which the documents are discovered: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 130 [1], 131 [3] (Gleeson CJ), 154-155 [96]-[97] (Hayne, Heydon and Crennan JJ); Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324, [1] (Finkelstein J); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.6.

[206] Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 3) [2011] FCA 793, [1] (Perram J).

[207] Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324, [12] (Finkelstein J).

[208] Cf Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 3) [2014] FCA 983, [23] (Yates J); Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 3) [2011] FCA 793, [52]-[53] (Perram J); InterPharma Pty Ltd v Commissioner of Patents [2008] FCA 1422, [4] (Sundberg J).

[209] Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324, [13].

[210] AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549, [12] (Besanko J).

[211] Cf Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 3) [2014] FCA 983, [22] (Yates J).

[212] InterPharma Pty Ltd v Commissioner of Patents [2008] FCA 1422, [19(a)] (Sundberg J) and, in particular, the reference to the electronic age in which people work.

[213] See also par 161 above.

[214] [2007] FCA 324, [12] (Finkelstein J).

[215] Ruling No 13, [18]. Disclosure of this nature might occur because the sender sent the information deliberately to a person and believed the recipient had executed a confidentiality undertaking when the contrary was the case, or when the sender sent the information without realising a particular person not the subject of any confidentiality undertaking had been included as a recipient to the email.

[216] See pars 112, 175(12) above.

[217] See par 150 above.

[218] [1996] VicRp 54; [1996] 2 VR 34: see par 169 above.

[219] See pars 58, 94, 95, 104, 109, 113 above.

[220] See par 144 and fn 171 above.

[221] Appeal Reasons, [131] (Kyrou and McLeish JJA).

[223] However, for completeness, see fn 170 above.

[224] See Conor Medsystems Inc v The University of British Columbia (No 4) [2007] FCA 324, [13] (Finkelstein J). See also Appeal Reasons, fn 83 and par 175(5) above.

[225] See par 73 above.

[227] See par 84 above.

[228] Quoting the Appeal Reasons, [179].

[229] On 27 September 2018, the Viterra Parties provided a "list of issues which remain outstanding insofar as the [Viterra Parties'] case is concerned". That list included, as item 6, "tender of any documents produced/discovered pursuant to the [19 July Orders] (including any related documents subsequently ordered by his Honour)".

[232] Appeal Reasons, [128]-[129].

[234] Relying upon Kraft Foods Group Brands LLC v Bega Cheese Ltd (No 3) [2018] FCA 1023, [4]-[7] (O'Callaghan J), citing Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 158 [107] (Hayne, Heydon and Crennan JJ). See further fn 205 above.

[235] This submission was not pressed in final submissions, and was expressly withdrawn by the Cargill Parties removing the issue from their list of relevant factors: see par 204 below.

[237] See further pars 86-87 above.

[238] Appeal Reasons, [1] (Whelan JA, dissenting), [201]-[209] (Kyrou and McLeish JJA).

[240] See Ruling No 16, [30]-[31].

[241] Ruling No 16, [19]. See also pars 60, 85 above.

[242] Attached as annexure "B" is the version put forward by the Cargill Parties. This version contains a draft form of order in respect of the treatment of third party confidential information. Further, the Cargill Parties informed the court that, since the Previous Access Orders were pronounced, there has been disagreement about some other aspects of the detail of the regime which may need to be raised before the court, depending on the outcome of the rehearing.

[243] Appeal Reasons, [153]-[154], [156] (Kyrou and McLeish JJA).

[244] See par 119 above.

[245] [1996] VicRp 54; [1996] 2 VR 34.

[247] Appeal Reasons, [161] (Kyrou and McLeish JJA).

[248] See pars 89, 96 above.

[249] See pars 91-93, 121 above.

[250] See par 148 above.

[251] See Appeal Reasons, [129], as set out at par 195 above.

[252] See par 29 above.

[254] The fact that there may be more highly relevant documents that go to more issues than just loss (see par 192 above) does not diminish the relevance of the Confidential Documents.

[255] See par 144 above.

[256] See fn 170 above. See further par 248 below.

[257] See pars 103, 122-125 above.

[258] See par 73 above.

[259] See pars 41-42 above.

[260] See par 44 above.

[261] [1996] VicRp 54; [1996] 2 VR 34 (Hayne JA, with whom Winneke P and Phillips JA agreed): see pars 167-170 above.

[262] See pars 41-44 above.

[264] Noting, of course, that often such information is disclosed as part of any due diligence by a prospective purchaser, but not necessarily so.

[265] Noting that each case depends on its own circumstances and, in some cases, it may be more appropriate for principals to have access rather than in-house counsel: Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354, 360.9-361.4 (Buckley LJ, with whom Russell and Orr LJJ agreed).

[267] Ruling No 16, [24(3)], [25(3)]; Ruling No 13, [18].

[268] See pars 175(9), 195(1) above.

[269] See fn 175 above.

[270] See par 127 above.

[271] See pars 105-106, 126 above.

[272] See pars 73, 102, 103, 105-108, 126 above.

[273] See par 126 above.

[274] See par 102 above.

[275] See, for example, pars 91, 107, 118 above.

[276] See par 175(3) above.

[277] See pars 63-64, 91-93, 121 above.

[278] See pars 84, 186 above.

[279] See par 94 above.

[280] See pars 66-67, 156, 180(9) above.

[281] See pars 92-93, 95, 175(10) above.

[282] See par 58 above.

[283] See par 225 above.

[284] See par 176 above.

[285] To use the language of Sundberg J in InterPharma Pty Ltd v Commissioner of Patents [2008] FCA 1422, [19(a)]: see fn 212 above.

[286] See par 176 above.

[287] See pars 103, 145 above.

[288] See further par 255 below with respect to the absence of an undertaking in this regard.

[289] See pars 73, 102 above.

[290] Although there was not a submission to this effect, it is a practical matter that ought to be the subject of these reasons.

[291] See pars 144, 180(8) above. See also Ruling No 16, [27].

[292] It was unclear whether this submission was maintained: see fn 170 and par 180(9) above.

[293] See pars 116, 156, 180(9) above.

[295] Appeal Reasons, [174]. See also [44] (Whelan JA, dissenting).

[296] See pars 58, 94-95, 180(4)-(7) above.

[297] Cf Appeal Reasons, [44] (Whelan JA, dissenting).

[298] Unlike previously, there was no suggestion by the Cargill Parties that someone other than Weber might be given access: see par 202 above.

[299] Cf Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663, [11] (Gordon J); Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324, [15] (Finkelstein J). See also Ruling No 16, [24(6)], [25(5)].

[300] See pars 242-249 above.

[301] Including, as set out in par 245 above.

[303] See fn 205 above.

[305] For completeness, it ought to be noted that the Cargill Parties were not satisfied with an implied undertaking with respect to the disclosure of the Confidential Documents. They insisted upon confidentiality undertakings before any access to the Confidential Documents was given to any of the opposing parties' external lawyers or experts. Such an insistence seems to run counter to their submission on this point.

[306] See pars 54-55 above.

[307] See par 194 above.

[308] Civil Procedure Act, ss 7, 8, 9, 10, 11, 23.

[309] See pars 58, 94-95, 180(4)-(7) above.

[310] At [21]. See also pars 86-87, 199-200 above.

[311] See fn 61 above.

[312] He holds the position of enterprise leader of food ingredients and bio-industrials at Cargill, Inc.

[313] No objection to the admissibility of this opinion evidence was made. Similar evidence was given by Savona in her affidavit sworn 27 August 2018: see fn 176 above.

[314] See pars 85, 200 above.

[315] Cf Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, 323 [56]-[57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[316] See pars 85, 202 above.

[319] 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.

[320] See [1] (Whelan JA, dissenting), [215]-[221] (Kyrou and McLeish JJA).

[321] See pars 157-158 above.

[323] For completeness, this trial has been conducted electronically.

[324] See par 159 above.

[325] See fn 3, order 2. There were some minor changes to what had been proposed by the Cargill Parties, but it is unnecessary to deal with them in circumstances where they were fully canvassed before the Previous Access Orders were made.

[326] See par 204 above.

[327] See pars 60, 85, 155, 202, 271 above.

[328] See, for example, pars 53-58, 91-95, 113-114, 117, 119, 121, 213-215, 237, 249-253 above. Cf par 185 above.

[329] See par 162 above.

[330] See pars 15-18 above.

[331] See fn 242 above.