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[2010] NSWLEC 91
Land and Environment Court (NSW)
2010-03-01
Preston CJ, Ms J, Dr J
Original judgment source is linked above.
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Caroona Coal Action Group Inc
Coal Mines Australia Pty Limited and Minister for Mineral Resources
CITATION : Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 4) [2010] NSWLEC 91
Ansell Rubber v Allied Rubber Industries [1967] VR 37 British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43; (2003) 8 VR 571 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59 CASES CITED: Faccenda Chicken v Fowler (1985) 6 IPR 155 Lansing Linde v Kerr (1990) 21 IPR 529 R v Waterfield [1975] 1 WLR 711 Seale Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 The Herald and Weekly Times Ltd v The Magistrates' Court of Victoria [1999] 3 VR 231 The Herald and Weekly Times Ltd v The Magistrates' Court of Victoria [2000] 2 VR 346
Nature of application and conclusion 1 On 6 January 2010, I dismissed the proceedings brought by the applicant, Caroona Coal Action Group Inc, challenging the validity of certain mining authorities issued by the Minster for Mineral Resources ("the Minister") to Coal Mines Australia Pty Limited ("CMA"): Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd v Minister for Mineral Resources (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25. On 29 April 2010, I ordered the unsuccessful applicant to pay the costs of the Minister and CMA: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minster for Mineral Resources (No 3) [2010] NSWLEC 59. The litigation in this Court is therefore concluded.
Applicant opposes confidentiality orders 27 At the hearing of CMA's application for an order restricting disclosure and use of the Caroona EOI, the applicant's solicitors no longer sought to be released from their express undertakings given to CMA's solicitors on 19 August 2009 that only the applicant's legal advisers could have access to the Caroona EOI and that the applicant's legal advisers would not disclose the contents of the Caroona EOI to other persons, including the applicant. The applicant's solicitors also did not seek to be released from the implied undertaking not to use discovered documents, which included the Caroona EOI, except for the purposes of the proceedings. As the applicant's counsel fairly conceded at the hearing of CMA's application for orders restricting disclosure and use of the Caroona EOI, there was no forensic need for the applicant's solicitors to be released from the express or implied undertakings because the proceedings were concluded when judgment was delivered. 28 Nevertheless, the applicant continued to oppose CMA's application for orders restricting disclosure and use of parts of the Caroona EOI. Although there was no benefit to the applicant in opposing CMA's application, the applicant submits that it was in the public interest that members of the public should be able to have access to the Caroona EOI on the Court file. The public interest was the principle of open justice. 29 The applicant submits that: "(a) CMAL bears the onus of demonstrating the confidentiality of the documents: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1024 at [16]. Convincing evidence must be advanced to sustain such a claim: Idoport at [19]. (b) If the documents are demonstrated to be confidential, CMAL then bears the onus of demonstrating that the confidentiality should continue to be protected by orders of the kind sought: Idoport at [16]. (c) An order prohibiting the publication of evidence is only valid if it is 'really necessary to secure the proper administration of justice in proceedings' before the court. Such an order must 'do no more than is necessary to achieve the due administration of justice': John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 per McHugh JA.
[2003] VSCA 43
(2003) 8 VR 571
(2010) 172 LGERA 25
(1985) 6 IPR 155
(1990) 21 IPR 529
(1992) 36 FCR 111
(1986) 5 NSWLR 465
(2000) 181 ALR 694
(2000) 2 VR 346