Vice President Judge Ginnane and Member Mr P Martin

Dual Gas Pty Ltd v EPA [2011] VCAT 2432

Subject to further order of a judicial member of the Tribunal, such order not to be made without 48 hours' written notice to each party:

1. By 5.00pm on Tuesday 20 September 2011 the Environment Protection Authority (the "EPA") file the following documents with the Tribunal in a sealed envelope, which the Tribunal member/s conducting the hearing are entitled to have access to for their use prior to and during the hearing:
   • (1) the documents exhibited as exhibits "B" to "M" of the affidavit of Paul William Welfare affirmed 2 September 2011, in unredacted form;
   • (2) the documents exhibited as exhibits "A" and "B" to the supplementary affidavit of Paul William Welfare affirmed 5 September 2011, in unredacted form;
   • (3) the documents exhibited as exhibits "A" to "F" to the further supplementary affidavit of Paul William Welfare affirmed 6 September 2011, in unredacted form

1. By 5.00pm on Tuesday 20 September 2011 the EPA file with the Tribunal all documents specified in Part 10 of Practice Note PNPE2/2011 other than:
   • (1) the Unredacted EPA Documents;
   • (2) documents already filed by the EPA with the Tribunal;
   • (3) the documents identified in Annexure D (the "Further EPA Documents"), which are to be the subject of further orders in relation to any claim by Dual Gas Pty Ltd that those documents contain confidential information.
2. Upon Dual Gas Pty Ltd ("Dual Gas") receiving a signed confidentiality undertaking to the Tribunal from (a) barrister(s) or solicitor(s) retained by a party or employed by the EPA in the form of Annexure A to these orders:
   • (1) Dual Gas must provide the solicitor(s) with a copy of the Unredacted EPA Documents;
   • (2) The solicitor(s) may provide the barrister(s) briefed by the solicitor(s) with a copy of the Unredacted EPA Documents.
3. Before a solicitor retained by a party or employed by the EPA provides a copy of the Unredacted EPA Documents to an expert retained by that party or employed by the EPA:
   • (1) If the expert is ordinarily resident:

(a) within the State of Victoria, the solicitor must provide to Dual Gas a signed confidentiality undertaking from the expert to the Tribunal in the form of Annexure A to these orders;

(b) outside the State of Victoria, the solicitor must provide to Dual Gas a signed confidentiality undertaking from the expert to the Tribunal and Dual Gas in the form of Annexure B to these orders;

(2) The solicitor must refrain from providing the expert with the Unredacted EPA Documents for a period of one clear business day after the confidentiality undertaking is provided to the solicitors for Dual Gas ("Maddocks") and Maddocks has expressly acknowledged receipt to the relevant party, in order for Dual Gas to consider whether it has any objection to the expert being provided with a copy of the Unredacted EPA Documents;

(3) In the event that Dual Gas has such an objection, Dual Gas is to notify the solicitor in writing within the one clear business day referred to above and, unless the relevant parties agree otherwise:

(a) The determination of the objection will be referred to the Tribunal; and

(b) The Unredacted EPA Documents must not be provided to the expert, pending the determination by the Tribunal of the objection.

1. Order 14 of the procedural orders made on 31 August 2011 is varied as follows, insofar as it relates to the obligations of parties other than Mr Martin Shield:
   • (1) At least 48 hours before filing the material required by order 14 (excluding the Outline of Submissions), the solicitor for a party must provide Maddocks with a copy of that material for the purposes of sub-paragraph (2) hereof;
   • (2) Within 48 hours (excluding Saturdays and Sundays) of receiving the material from the solicitor for a party pursuant to sub-paragraph (1) hereof ("the Vetting Period"), Dual Gas must:

(a) provide that solicitor with a copy of any document/s contained in that material which Dual Gas claims to contain confidential or commercially sensitive information, redacted so as to mask the confidential or commercially sensitive information (the "Redacted Hearing Documents");

(b) notify each of the other parties of the redactions which have been made.

(3) In order to accommodate the Vetting Period the deadline dates of 3 October, 10 October and 17 October shall be extended by 48 hours to 5 October, 12 October and 19 October respectively.

(4) For the purposes of complying with order 14 so far as filing is concerned, the solicitor for a party is to:

(a) file only the Redacted Hearing Documents, and the documents which Dual Gas does not claim to contain confidential or commercially sensitive information;

(b) file with the Tribunal an unredacted version of the Redacted Hearing Documents (the "Unredacted Hearing Documents") in a sealed envelope, which the Tribunal member/s conducting the hearing are entitled to have access to for their use prior to and during the hearing.

(5) For the purposes of complying with order 14 so far as service is concerned, the solicitor for a party is to:

(a) serve the material required by order 14 on the solicitor for each other party, provided a signed confidentiality undertaking from that solicitor has been provided to Dual Gas in accordance with order 3 above;

(b) serve the Redacted Hearing Documents on all parties, including Mr Martin Shield.

(6) A solicitor served with material pursuant to order 5(5)(a) above may provide a copy of that material to the barristers or experts retained by that solicitor's client or employed by the EPA, provided such barristers or experts are persons who are entitled to be provided with a copy of the Unredacted EPA Documents pursuant to orders 3 or 4 above.

1. Order 25 of the procedural orders made on 18 July 2011 is varied as follows:
   • (1) The EPA is not to publish any witness statement or outline of submissions on its website without paragraphs 5(1) and 5(2) having been complied with in respect of those statements or outlines;
   • (2) The EPA is to publish on its website only that material specified in paragraph 5(4)(a) above;
   • (3) For the avoidance of doubt, the EPA is not to publish on its website the Unredacted Hearing Documents.
2. No person may inspect or obtain a copy of the Unredacted EPA Documents or the Unredacted Hearing Documents pursuant to sections 146(2) or 146(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the "VCAT Act").
3. For the avoidance of doubt, other than as expressly provided by paragraphs 1, 3, 4, and 5 of these orders:
   • (1) the Unredacted EPA Documents, the Further EPA Documents, and the Unredacted Hearing Documents are not to be filed with the Tribunal;
   • (2) the Unredacted EPA Documents and the Unredacted Hearing Documents are not to be served on or provided to any person;
   • (3) the Further EPA Documents are not to be served on or provided to any person other than Dual Gas.
4. By 5.00pm on Friday 16 September 2011 Mr Paul Welfare of Dual Gas and Mr John Marsiglio of the EPA meet in order to seek to agree upon the confidentiality of the redacted parts of the exhibits referred to in paragraphs 1(1), 1(2) and 1(3) of these orders. This meeting will be conducted on a without prejudice basis, save for the outcome as provided for in paragraph 10 below.
5. By 5.00pm on Friday 16 September 2011, Dual Gas file and serve:
   • (1) a list identifying, by reference to the table handed up to the Tribunal and circulated at the hearing on 8 September 2011 (a copy of which is Annexure C to these orders), which (if any) items of information remain the subject of dispute between Dual Gas and the EPA as to their confidentiality; and
   • (2) an affidavit by Mr Paul Welfare stating the basis upon which it is claimed that each disputed item of information is confidential.
6. The determination of any dispute concerning items referred to in paragraph 10 of these orders will be referred to the Tribunal.
7. Costs are reserved.
8. There is liberty to apply.

ANNEXURE A - FORM OF CONFIDENTIALITY UNDERTAKING FOR BARRISTERS, SOLICITORS AND EXPERTS ORDINARILY RESIDENT IN THE STATE OF VICTORIA

I, [Name], [Title] of [Residential Address] undertake to the Victorian Civil and Administrative Tribunal as follows:

1. I have read the Orders made in the proceeding by the Tribunal on 16 September 2011 (the "16 September Orders").
2. I acknowledge that the documents which I obtain copies of in pursuance of this undertaking may contain Dual Gas Pty Ltd's confidential information. For the purposes of this undertaking, "Confidential Information" means the information identified in Annexure C to the 16 September Orders as amended from time to time:
   1. By written notice from Dual Gas Pty Ltd to the Tribunal and the parties to the proceeding that a particular piece of information contained in Annexure C is not confidential information; or
   2. By order of the Tribunal

1. I undertake to keep the Confidential Information confidential in accordance with this undertaking at all times, including keeping the Confidential Information in a manner that will preserve its confidentiality at all times.
2. I will not photocopy, scan or otherwise mechanically reproduce any document containing any Confidential Information, other than as expressly provided for by the 16 September Orders. However, this undertaking does not prevent me from printing my own report or, if I am a barrister or solicitor, printing a report prepared by my client's expert(s), for the purposes of the present proceeding or any appeal therefrom.
3. I will not transcribe any Confidential Information, other than solely for the purposes of the present proceeding or any appeal therefrom.
4. I will use the Confidential Information solely for the purposes of the present proceeding, or any appeal therefrom, and in accordance with this undertaking and the 16 September Orders.
5. I will not disclose the Confidential Information to any person, other than:
   1. a person who is entitled pursuant the 16 September Orders to receive the Unredacted EPA Documents;
   2. the Tribunal.
6. I will promptly notify the solicitors for Dual Gas if I become aware that I have inadvertently lost or ceased to be in possession of, or made any unauthorised use or disclosure of, the Confidential Information or any part of it.
7. Unless I am the Solicitor to the EPA who is, on behalf of the EPA, to retain one set of all documents associated with the Dual Gas application and any consequential approval in accordance with the EPA's statutory record keeping requirements including the Public Records Act 1973, within 14 days after the expiry of the appeal period following the conclusion of this proceeding or, if an appeal is lodged, within 14 days after the conclusion of any appeal proceedings, I will:
   1. destroy any documents (including, for the avoidance of doubt, any documents created by me) containing the Confidential Information; and
   2. notify Dual Gas in writing that I have destroyed the documents as required by paragraph (a).

............................................(Print) Name

............................................(Print) Witness Name

ANNEXURE B - FORM OF CONFIDENTIALITY UNDERTAKING FOR EXPERTS ORDINARILY RESIDENT OUTSIDE THE STATE OF VICTORIA**

I, [Name], [Title] of [Residential Address] undertake to Dual Gas Pty Ltd and to the Victorian Civil and Administrative Tribunal as follows:

1. I have read the Orders made in the proceeding by the Tribunal on 16 September 2011 (the "16 September Orders").
2. I acknowledge that the documents which I obtain copies of in pursuance of this undertaking may contain Dual Gas Pty Ltd's confidential information. For the purposes of this undertaking, "Confidential Information" means the information identified in Annexure C to the 16 September Orders as amended from time to time:
   1. By written notice from Dual Gas Pty Ltd to the Tribunal and the parties to the proceeding that a particular piece of information contained in Annexure C is not confidential information; or
   2. By order of the Tribunal

1. I undertake to keep the Confidential Information confidential in accordance with this undertaking at all times, including keeping the Confidential Information in a manner that will preserve its confidentiality at all times.
2. I will not photocopy, scan or otherwise mechanically reproduce any document containing any Confidential Information, other than as expressly provided for by the 16 September Orders. However, this undertaking does not prevent me from printing my own report for the purposes of the present proceeding or any appeal therefrom.
3. I will not transcribe any Confidential Information, other than solely for the purposes of the present proceeding or any appeal therefrom.
4. I will use the Confidential Information solely for the purposes of the present proceeding, or any appeal therefrom, and in accordance with this undertaking and the 16 September Orders.
5. I will not disclose the Confidential Information to any person, other than:
   1. a person who is entitled pursuant the 16 September Orders to receive the Unredacted EPA Documents;
   2. to the Tribunal.
6. I will promptly notify the solicitors for Dual Gas if I become aware that I have inadvertently lost or ceased to be in possession of, or made any unauthorised use or disclosure of, the Confidential Information or any part of it.
7. Within 14 days after the expiry of the appeal period following the conclusion of this proceeding or, if an appeal is lodged, within 14 days after the conclusion of any appeal proceedings, I will:
   1. securely destroy any documents (including, for the avoidance of doubt, any documents created by me) containing the Confidential Information; and
   2. notify Dual Gas in writing that I have destroyed the documents as required by paragraph (a).

............................................(Print) Name

............................................(Print) Witness Name

DUAL GAS PTY LTD v ENVIRONMENT PROTECTION AUTHORITY

**Dual Gas no longer presses a claim for confidentiality in respect of the asterisked items.

Note: The struck through items are items which were included in the table handed up to the Tribunal on 8 September 2011 but which, following Dual Gas' meeting with the EPA on 13 September 2011, Dual Gas no longer claims confidentiality in respect of.

Further Note: The descriptions which appear in the table below identify the approximate locations of the confidential information contained within the Unredacted and Redacted EPA Documents.

These descriptions are intended to provide a guide only.

The exact location and extent of each confidential item within the Unredacted EPA Documents and the Redacted EPA Documents are indicated by transparent text boxes (in the Unredacted EPA Documents) and blacked out text boxes (in the Redacted EPA Documents).

"B", p 1 of first Hessler Associates technical memo

"B", p 1 of second Hessler Associates technical memo

"C", p 4 of 19 April 2011 letter, first paragraph under the heading "Sulphur Reduction Technology Options"

"C", p 4 of 19 April 2011 letter, final line of the page

"C", p 6 of 19 April 2011 letter, penultimate entry under heading "References"

"D", email from Marsiglio to Welfare, first bullet point

"E", email from Welfare to Marsiglio, 3rd to 9th paragraphs

"E", email from Marsiglio to Welfare, second and following paragraphs under heading "5.a Scope for improvement of the IDGCC process"

"F", email from Marsiglio to Welfare, second and following paragraphs under heading "5.a Scope for improvement of the IDGCC process"

"G", p 3 of 6, second paragraph, first to fifth bullet points

"G", pp 3-4 of 6, first to sixth paragraphs under heading "Dual Gas Response:"

"G", pp 4-5 of 6, first and second paragraphs under heading "Dual Gas Response:"

"G", p 5 of 6, paragraph under second heading "Dual Gas Response:"

"G", p 5 of 6, paragraph under third heading "Dual Gas Response:"

"G", p 6 of 6, first paragraph under heading "Dual Gas Response:"

"G", p 6 of 6, second and third paragraphs under heading "Dual Gas Response:"

"I", p 2 of 3, contents of table headed "Estimate of Power Sent Out"

"I", p 3 of 3, response to second dash point of question numbered "7"

"I", p 3 of 3, response to third dash point of question numbered "7"

"J", response to question numbered "7", table heading

"J", response to question numbered "7", contents of table

**"M", p 8, paragraph under heading "3.2 Planning"

**"M", p 28, paragraph under heading "Particles - coal delivery system"

**"M", p 34, first paragraph under heading "6.5.1 Current noise environment"

**"M", p 34, second paragraph under heading "6.5.1 Current noise environment"

**"M", p 41, third paragraph under heading "6.6.2 Stormwater:

"A", pp 15-16, paragraphs below heading "Char boiler"

"A", p 26, line below heading "E class gas turbine"

"B", p 30, first bullet point under heading "A3.1.3"

"B", p 30, second bullet point under heading "A3.1.3"

"F", Attachment A, first paragraph under heading "1. Syngas Drier."

"F", Attachment A, paragraphs numbered 3(i) and 3(ii)

Dual Gas responses to questions 1 and 2 of EPA notice requiring further information dated 18 Nov 2010 containing:

• Table 1, key process data; and
• Block PFD for 1 gassifier, 1 gas turbine, 1 steam turbine

Air Quality Modelling Assessment -600MW Dual Gas Demonstration Project in Latrobe Valley (HLRC/2009/430/R5)

(contains screen shots of surface metrological stations)

Reply no.1 to EPA notice requiring further information dated 17 Nov 2010-

Q9 Email: Maartin van der Burgt to Terry Johnson dated 16 November 2010

EPA Request for Further Information-23 December 2010: Dual Gas

HRL DGPS - Input parameters for air quality plume rise & greenhouse gas assessments

SO2Air Quality Modelling Assessment -600MW Dual Gas Demonstration

Dual Gas Demonstration Project -Environmental Noise Modelling

Simon Molesworth QC and David Deller of Counsel, instructed by Corrs Chambers Westgarth

James Elliott SC and David Bennett of Counsel, instructed by Maddocks

For Environment Victoria Inc. & Locals into Victoria's Environment Inc.

Adrian Finanzio and Rupert Watters of Counsel, instructed by the Environment Defenders Office

1. Pursuant to order of Deputy President Dwyer of 31 August 2011, as varied on 7 September 2011, the Tribunal constituted by Vice President Judge Ginnane and Member Mr P Martin heard argument about:

(a) what information should be treated as confidential;

(b) the relevance of any confidential information to the issues under review;

(c) who should be entitled to access the confidential information, and on what basis, in preparing submissions and evidence for the hearing;

(d) what orders if any are required under ss 101 or 146 of the Victorian Civil and Administrative Tribunal Act 1998;

(e) any related issue concerning the production or use of confidential information in the proceeding.

1. At the conclusion of submissions on 8 September 2011, most of the parties had reached a consensus as to the structure of the orders that were appropriate, subject to further order. The Tribunal gave oral reasons as to why the framework of the orders was appropriate and as to its decision on three contested matters. These reasons are a revision of those oral reasons, together with reference to developments since 8 September 2011.
2. At the conclusion of the hearing on 8 September 2011, the parties were to formulate the terms of the orders and undertakings. The matters were relisted on 12 September 2011, but further matters requiring discussion between the parties. On 19 September 2011 the Tribunal received agreed orders.
3. The applications for review concern a works approval issued by the Environment Protection Authority for a proposed power demonstration power station at Morwell.
4. The issues argued on 8 September 2011 principally concerned the determination of what access would be given to documents provided by Dual Gas Pty Ltd, and by expert witnesses to the EPA. These documents are to be lodged with VCAT.
5. Dual Gas has applied for orders under s 146 of the VCAT Act restricting access to parts of the material that are to be lodged and placed on the VCAT file on the basis that parts of the material includes confidential information. It also relied on the provisions of s80 of the Act.
6. Dual Gas relied on four affidavits made by Mr P Welfare its General Manager. The EPA relied on affidavits made by Mr J Marsiglio and Mr C Tsesmelis.
7. During the course of the hearing, Mr Finanzio, counsel for Environment Victoria Incorporated and Locals into Victoria's Environment Inc, suggested a resolution of the issue, so as to ensure that the commencement of the hearing of the applications was not disrupted. The framework of Mr Finanzio's suggested resolution is reflected in the orders that the Tribunal has made this day.
8. The Tribunal's reasons for making the orders are as follows.
9. Based on Mr Welfare's affidavits, there is sufficient material justifying, at this point, the making of orders under s 146 and s 80 of the VCAT Act in respect of the parts of the documents that are claimed to contain confidential information. The parts of documents claimed to be confidential, including parts of documents claimed to be commercially sensitive, were identified in tables provided to the Tribunal.
10. The onus rests on Dual Gas to establish its claims for confidentiality. The EPA's affidavits put in issue whether all of the information, which Dual Gas seeks to remain confidential has that character. It may ultimately be established that not all of it does.
11. The Tribunal is conscious of the need to balance the interests of public participation, particularly in matters under the Environment Protection Act 1970, against other relevant interests. Public participation in such matters assists in achieving effective decision making.
12. Other relevant interests include Dual Gas' interest in preserving the confidentiality of documents that truly have that character.
13. We accept that the Tribunal should be cautious in making confidentiality orders and that the more information that can be released, the greater the opportunity for informed public participation in the review.
14. The public interest in the subject matter of these applications is represented by the EPA. The interests of those who have a particular concern in the environment is represented by the parties for whom Mr Finanzio appears, in particular Environment Victoria Incorporated, which we were informed, is a peak body for groups with particular interest in the environment.
15. Balancing these considerations, we consider that subject to any further order, the broad terms of the orders proposed by Mr Finanzio, strike an appropriate balance between the competing interests. In reaching that conclusion the Tribunal has taken into account that the hearing of the applications is due to commence on 24 October 2011 and the fact that a detailed determination of all of the claims for confidentiality might well delay the timetable of steps required to prepare for that hearing.
16. It was proposed that Mr Welfare and Mr Marsiglio would meet to attempt to refine the amount of information for which confidentiality is claimed. A more confined dispute about particular claims for confidentiality may well still need to be determined.
17. Three other particular matters need to be decided. The first is whether Ms McKenzie-McHarg, who is employed by Environment Victoria Inc, and is its project manager in respect of these applications, should have access to the unredacted documents. The second question is whether one of the applicants, Mr Martin Shield, should have access to the unredacted documents. The third issue is whether the undertaking to be given by experts should be given both to VCAT and to Dual Gas.
18. Dealing with the first matter, we do not consider, that it has been established that Ms McKenzie-McHarg should have access to the unredacted documents. In proceedings in which confidential information is identified, it is relevant to determine whether it is necessary for particular persons to have access to it.[1] Normally that access is confined to legal representatives and expert witnesses. No material has been put before us to justify a different procedure in the present applications.
19. In respect of Mr Shield's access to the unredacted documents, we note the following. Mr Shield will have access to the redacted documents. Much of the material that will be subject to confidentiality orders is of a technical nature. Mr Shield did not claim to have relevant technical expertise, nor did counsel appearing for the various parties. The technical, redacted material would be of utility to him only if he had the assistance of an expert, or someone with technical expertise. He did not suggest that he would have such assistance. Mr Shield has not indicated whether he has sought, or will seek legal representation.
20. We consider that it is likely that a number of the issues that Mr Shield wishes to argue will be raised in one form or another by parties, who are represented by legal practitioners and who have the assistance of experts, who will have access to the unredacted documents.
21. One of the grounds on which Mr Shield relies is contained in s 33B (2) of the Environment Protection Act 1970. It appears that the other objector applicant objectors do not rely on that provision. An element of that provision requires the applicant to establish that the use of the works will have specified features or consequences:

"which will unreasonably and adversely affect the interests, whether wholly or partly of that person." (ie the applicant)

1. This ground may raise a question as to the standing of an applicant. However, we express no view about that issue as it has not been the subject of submissions.
2. The Tribunal seeks to assist the involvement of laypersons in matters, particularly of the present character. Mr Shield will have access to all information, save for confidential information of a mainly technical nature. We do not consider that he should be provided with the unredacted documents.
3. We make no decision about whether all of the hearing of the applications will remain open to the public. Any issue about that will be decided by Tribunal member or members who hear the applications.
4. So far as the third matter is concerned, we consider that the appropriate course is for legal practitioners and expert witnesses, who ordinarily reside in Victoria to give confidentiality undertakings to VCAT. Those persons will be subject to the processes of the Tribunal for enforcing undertakings if that course is necessary.
5. In respect of experts who reside outside Victoria, whether elsewhere in Australia or overseas, we consider that they should give an undertaking to the Tribunal and to Dual Gas.

[1] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34