Cargill Australia Ltd v Viterra Malt Pty Ltd [2021] VSC 242 | Case summary

Supreme Court of Victoria|2021-05-11|Before: ELLIOTT J

For the reasons that follow, the evidence relied on by Copagest does not establish that the Sale Figures are "very commercially sensitive". Equally, the court cannot be satisfied on the evidence that Copagest would suffer severe commercial harm if the Sale Figures were made public. Accordingly, the matters raised are insufficient to demonstrate that the administration of justice requires the making of the proposed orders.
In relation to the probative value of the relevant evidence and the weight it should be given,[57] a number of concessions were properly made by Copagest's counsel. It was accepted that the second sentence in the passage set out was vague. In relation to the various references to Copagest's competitors, it was acknowledged that the competitors were not identified and the evidence could have been put more precisely. Also with respect to the third sentence, Copagest's counsel accepted the Viterra Parties' submission that it amounted to an assertion without a basis as to how the assessment referred to was said to be able to occur.
As to the substance of the evidence, Schaepman's affidavit expressed the view, but did not explain how or why, access to the Sale Figures would allow Copagest's European competitors to assess the financial stability of, and burden of debt borne by, Copagest and its related parties. Counsel for Copagest accepted that nothing in the Sale Figures indicated how the purchase had been funded by Copagest, and that without something more the level of debt borne by Copagest and its related parties would not be apparent. It was also not clear from Schaepman's affidavit how Copagest's European competitors would be able to use the Sale Figures to assess how Axéréal values a business that it wishes to acquire. Counsel for Copagest accepted that Schaepman's evidence on this point amounted to an assertion with no explanation and no evidence as to how the identified risk to Axéréal could occur.
In short, publication of no more than the Sale Price, how that was allocated for various regions and the EBITDA Multiple used in relation to this particular transaction, would not give rise to the reader having knowledge of, or even a basis to sensibly estimate, any of the matters referred to by Schaepman.

Ordinarily, the proper administration of justice requires publication of the judgment in a complete form, without the concealment of material relating to a matter that it was submitted at trial was material to the outcome of the proceeding.[59] Despite it not being a party to the proceeding, nothing put forward by Copagest is sufficient to interfere with publication of the Sale Figures when the principal judgment is delivered in circumstances where the Viterra Parties relied on the relevant evidence as a material part of their defence.[60]
For completeness, if the conclusion reached in respect of Question 1 had been "no", and the Open Courts Act did not apply to the proposed orders, the same principles identified would be applicable to consideration of the proposed orders under the general law.[61] The analysis in section D.3 would thus equally apply if the Open Courts Act did not apply to the proposed orders.
Accordingly, the application must be dismissed.

[1] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 627 [85].

[2] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [6]-[9].

[3] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 613- 614 [10]-[16].

[4] Being Viterra Malt Pty Ltd, Viterra Operations Pty Ltd and Viterra Pty Ltd (formerly Viterra Ltd).

[5] Cargill, Inc is Cargill Australia's ultimate parent company.

[6] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [50]-[55].

[7] Including documents subsequently created as the sale process progressed.

[8] Details of the confidentiality regime and the relevant background are set out in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17) [2018] VSC 750, [26]-[61], [279]-[285].

[15] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 618 [41].

[17] As the parties have been informed already, this in no way gives rise to any inference as to the outcome on questions of liability as there are many question of fact that the court needs to determine on the question of loss regardless of the outcome on liability.

[19] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 620-621 [53].

[22] To which the Open Courts Act would expressly not apply, under s 7.

[23] Copagest also submitted it was not possible to fully assess the significance of the Sale Figures to the principal judgment as it is yet to be delivered. When Copagest's counsel was asked whether it was appropriate to defer this application until the principal judgment had been delivered, the court was informed that Copagest wanted to proceed with the application presently.

[25] See par 17 above.

[26] Reliance was placed upon each of the 3 aspects of the Sale Figures.

[27] Part 2 contains provisions concerning the making of (s 14), scope of (s 13), and duration of (s 12) suppression orders. Part 2 also contains procedural requirements related to notice (s 10) and notification (s 11).

[28] (2019) 279 A Crim R 357 (Ferguson CJ, Beach and McLeish JJA).

[30] Director of Public Prosecutions (Cth) v Brady [2015] VSC 246; (2015) 252 A Crim R 50, 60 [59] (Hollingworth J).

[31] [ 2019] VSCA 154 (Whelan, Beach and Weinberg JJA).

[32] Ibid, [102]-[106]. See also Napier v Treasury Wine Estates Ltd [2020] VSC 765, [26] (Nichols J).

[33] (2019) 58 VR 611, 621-625 [59]-[73].

[34] Botsman v Bolitho (No 1) (2019) 57 VR 68, 120 [244] (Tate, Whelan and Niall JJA). See also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 530-532 [20]-[22] (French CJ).

[35] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

[36] Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118, [121] (Marshall, Rares and Flick JJ); Russell v Russell (1976) 134 CLR 495, 520.6 (Gibbs J).

[37] See R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227, 235D-E (Donaldson MR, with whom Griffiths and Slade LJJ agreed); Scott v Scott [1913] AC 417, 437.6 (Viscount Haldane LC).

[38] See, for example, Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 667 [43] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); ABC v D1; Ex parte The Herald & Weekly Times Ltd [2007] VSC 480, [62], [65], [67]-[68], [71] (J Forrest J).

[39] Botsman v Bolitho (2019) 57 VR 68, 120 [245] (Tate, Whelan and Niall JJA); Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663, [437] (Osborn JA).

[40] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 623-625 [67]-[73].

[41] Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [106] (Whelan, Beach and Weinberg JJA); AA v BB [2013] VSC 120; (2013) 296 ALR 353, 388 [181] (Bell J).

[42] Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651, 666 [38] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ), citing, with approval, Hogan v Australian Crime Commission [2009] FCAFC 71; (2009) 177 FCR 205, 220-221 [42] (Jessup J).

[43] Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [13]-[14] (Greenwood J); Qantas Airways Ltd v Rolls-Royce PLC [2010] FCA 1481, [21] (Rares J).

[44] Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326, [8] (Jacobson J); ICAP Australia v Forrest Moebes [2010] NSWSC 738, [8] (Ball J) and the authorities there cited.

[45] See, for example, Re Hogan; ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288, 296-297 [34] (McLure P, with whom Owen and Miller JJA agreed), 299 [50]-[51] (Owen JA, with whom Miller JA agreed); Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326 [8].

[46] Wainohu v New South Wales (2011) 243 CLR 181, 215 [58] (French CJ and Kiefel J).

[48] Ibid, [250]. See also the authorities referred to at [263].

[49] Ibid, citing Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [23] (Rares J).

[50] For completeness, not all documents over which confidentiality was sought to be maintained were the subject of orders for confidentiality: see, for example, [264]-[267].

[51] Copagest's counsel accepted that Copagest was aware of this at the time of its dealings with Cargill, Inc in relation to the Sale.

[53] Fonterra Brands (Australia) Pty Ltd v Bega Cheese Pty Ltd [2018] VSC 471, [24]-[25].

[57] See par 39 above.

[58] It is trite that there are many factors that can affect how an appropriate EBITDA Multiple might be arrived at.

[59] The Cargill Parties submitted the evidence was irrelevant, but these issues are matters for the principal judgment.

[60] In light of this, it is unnecessary to consider the applicability of the time limits imposed by the Open Courts Act: see s 12.

[61] See par 35 above.

Cargill Australia Ltd v Viterra Malt Pty Ltd

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