(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.'

The orders are prefaced by the statement that they are subject to further order of a judicial member of the Tribunal.

1. This was the pathway or regime set out by the Tribunal in relation to possible objections by a party to the handing over of Unredacted Documents. It is the pathway which Dual Gas followed in making its application.
2. Mr James Elliott SC with Mr Tom Clarke appeared on behalf of Dual Gas. Mr Simon Molesworth QC with Mr David Deller appeared on behalf of the EPA. Ms Gabrielle Tipple appeared as solicitor for two third parties. Mr Martin Shield, another third party, appeared in person. The approach of the third parties was essentially to support the position put on behalf of the EPA and they were heard from briefly in this regard. However, as might be expected, given that the documentary material in question is the property of Dual Gas and that the proposed expert witnesses are those of the EPA, the conflict was essentially between those parties. Counsel for Dual Gas and the EPA had prepared particularly helpful and detailed written submissions. Mr Elliott and Mr Molesworth spoke to them. No oral evidence was called. Extensive affidavit material, with exhibits, was placed before us.

1. The following findings of fact, brief as they are, are made solely for the purposes of the present application. They are in no way intended to be determinative in relation to any issues relating to the principal dispute.
2. Dual Gas is proposing to build a demonstration power station in Morwell, this using synthesis gas generated from brown coal. It applied for a works approval pursuant to the Environment Protection Act 1970 ('the EP Act'). As we understand it, this method of converting brown coal into gas and hence generating power was said to be a cleaner, more environmentally friendly use of brown coal for this purpose. Dual Gas applied for a 600 megawatts power station. The works approval forthcoming from the EPA limited the demonstration project to 300 megawatts. Pursuant to the provisions of the EP Act and the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') Dual Gas seeks a review of that decision. This Tribunal now stands in the shoes of the decision-maker. There are also many objectors to the power station proposed by Dual Gas and these objectors, some of whom are grouped and have shared representation, are third parties to the review application.
3. The review application has been allocated some 20 hearing days, the first of which is 24 October next. There is a timetable for the provision of the statements of witnesses and it was intended that this process would be starting virtually immediately. Patently, and as discussed with counsel, our ruling in the present application has the potential to impact upon the timetable that has been put in place. For these reasons we are operating under very considerable time restraints if there is to be anything resembling adherence to the timetable and perhaps the reasons for our ruling might have been more expansive in other circumstances. However, as emphasised by counsel, the issue involved is a particularly important one to both Dual Gas and the EPA and something more than an ad hoc decision is desirable, if not necessary.
4. That Dual Gas possesses confidential documentary material relating to its project and its processes is not in dispute. The issue is whether that material, in its unredacted or unedited form, should be made available to the witnesses in question. We turn now to them.
5. Mr Tsesmelis is the director and principal consultant of an entity called Protos Consulting International Pty Ltd. He is a well-qualified engineer with specialist qualifications relating to fuel technology. He possesses 37 years worth of technical, managerial and commercial experience in natural gas processing, oil and gas, refining, petrochemicals, coal gasification and coal-to-liquids processing.
6. It can be seen why the EPA would regard Mr Tsesmelis as an expert in this area. Apart from any clients of Protos Consulting International Pty Ltd which he may have, Mr Tsesmelis has a partnering agreement with an entity called Clean Coal Technology South Africa Pty Ltd ('CCT') and is a Senior Consultant on CCT's technical team. He has assisted CCT with development work in the Peoples Republic of China and a parent company of CCT is Golden Nest International Group (Pty) Ltd, a company registered in South Africa. It has interests including coal based chemical technology developments and petroleum exploration. It has offices and considerable investments in China.
7. We shall not go into the background of Dr Ross in any detail as the situation in relation to him seems to be far more simple. Indeed, as we understand it, it is more a question of whether the material in question should be forwarded to him under cover the confidentiality undertaking or whether he can inspect the material and then select items according to their relevance. We can indicate now that we are not particularly impressed with the arguments advanced on behalf of Dual Gas in this regard and that the application in so far as it relates to Dr Ross fails. The objection in relation to him seems to be based solely on the possible relevance of some of the material rather than on any risk relating to confidentiality, intellectual property, commercial trade rivals or the like. If that be so, we see no reason why the application in so far as it relates to Dr Ross should succeed. If he is permitted to inspect the material in any event, we see no reason why there should be applied to him what Mr Molesworth described as an extra layer of bureaucratic intervention in relation to access to the material. Save for the ultimate order which we make, we shall not be making any further reference to the application in so far as it relates to Dr Ross.
8. We now turn to the submissions regarding Mr Tsesmelis.

1. The submissions of Mr Elliott on behalf of Dual Gas could be summarised as follows:

In proceedings between business competitors, it may be necessary to impose limits on a competitor's ability to inspect discovered documents containing commercially sensitive trade secrets. In such circumstances inspection typically is confined to legal representatives and, if appropriate, expert witnesses. Reference is made to the decision of Hayne JA in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 ('Mobil'). In particular, reliance is placed upon the following passage which, subsequently, has been cited in other cases:

'Once the documents are inspected by the principals of the trade rival the information which was 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?'

The last question posed by his Honour perhaps summarises the test which is to be applied.

1. Whilst orders of this nature limiting inspection occur most commonly in litigation concerning intellectual property between parties who are trade rivals, such litigation is not a precondition of the exercise of the power to make appropriate orders to protect confidential and commercially sensitive information. Such orders can be made where the trade secret is not the direct subject of the litigation if the administration of justice requires the suppression of confidential information if the value of that information would be seriously compromised by disclosure. The ultimate test is to determine what is necessary for the attainment of justice in the particular case depending on its own facts and circumstances.
2. There is authority that a court may prohibit a party's confidential trade secrets from being disclosed to an opponent's expert witness if there is a material risk that, as a consequence of such disclosure, the confidential trade secrets may then be disclosed or used to the detriment of their owner. Such circumstances arise where the opponent's expert is himself a trade rival or a potential trade rival, or a consultant to same, or otherwise has an active interest in developing or acquiring intellectual property to which the trade secrets relate. There are a number of authorities in relation to this, with particular reference being made to Hotrox Charcoal Company v Gebauer Nominees [2002] WASCA 293 ('Hotrox') and Bayer Bioscience NV v Deltapine Australia Pty Ltd [2006] FCA 68. Bearing in mind what was said by Hayne JA in Mobil, the giving of a confidentiality undertaking honestly and in good faith is insufficient to neutralise the risk of disclosure or use of the confidential trade secrets other than for the purposes of the litigation. The confidentiality undertaking imposes an obligation which is impossible for the expert to perform and which is impossible for the owner of the trade secrets to police. Because of the expert's interest in the technology involved, he or she is unlikely ever to forget the information disclosed - see Hotrox at paragraph 50 and Bayer at paragraph 19. In the present case, it is not alleged that Mr Tsesmelis would deliberately breach the undertaking given (although Mr Elliott put in his reply that Mr Tsesmelis may be tempted by the amount of money involved) but rather that there is a risk of disclosure, even inadvertent, because, given his interests, it will be impossible for him to forget or exclude such information in the course of his ongoing business activities and interests.
3. In the present case, through Protos Consulting International Pty Ltd, Mr Tsesmelis provides technical and project management consulting services worldwide to industries such as coal-to-liquids, natural gas, oil refining, alternative fuels and the like and has been so doing since 1996. His affidavit reveals that he was retained as Senior Consultant to CCT which is a South African-Chinese joint venture which sells technology and offers services in the coal-to-liquids industry. CCT has established a pilot plant in China. Its technology includes a coal gasification process and it is a competitor of Dual Gas. Indeed, Mr Tsesmelis has approached the parent company of Dual Gas on behalf of CCT requesting technical information. His request was declined. He also made enquiries on behalf of another entity, Spitfire Oil Limited, which was, at the time, exploring various coal-to-liquids technologies in Western Australia. Again the parent company of Dual Gas declined to provide the information.
4. Dual Gas accepts the onus in the present application. However, it has discharged same. Reference is made to the decision in Hotrox in which the Full Court of the Supreme Court of Western Australia made certain observations, including the following at paragraph 52:

'I accept that Dr Franklin (the expert in question) is now mainly engaged as a consultant and he is not presently intending to embark upon any enterprise which would involve him in manufacturing charcoal by this or any other method. He is a professional adviser in this field and he appears to be retained by a number of large undertakings in the industry. But one can well imagine the situation in the future ... in which Dr Franklin is asked about the possibility of doing something along the lines which Hotrox claims to do and, having gained the information he would gain on the inspection which he desires to carry out, would be in a quandary as to whether, directly or indirectly, to make use of that information in advising his client. And there would be the danger that he may subconsciously disclose something which was covered by his agreement to keep matters learnt on the inspection confidential. It would seem to me that unless he declined to advise any client interested in pursuing a process similar to that of the respondent, there would always be the danger that he would, however unwittingly, make a disclosure which would imperil the confidentiality which he has agreed to preserve.

1. The above applies to the present situation. Mr Tsesmelis is a consultant with an interest in the technology, concerning which he has made previous enquiries which have been declined. He is a long-established consultant and it may reasonably be anticipated that he will continue to be so engaged by those seeking to operate in the coal gasification and coal-to-value fields both here and internationally. There is a material risk of inadvertent disclosure and/or use of confidential trade secrets to the detriment of Dual Gas. The risk is not fanciful or remote.
2. Further, the confidential information in question is central or fundamental to the technology or business that is the subject of the present case. The information in question is of central importance to the technology which is sought to be achieved through the construction of the demonstration project at Morwell. Large amounts of time and money have been invested in this and it is hoped that there will be substantial environmental and economic benefits. The technology therefore has the potential to be of great value to its owner. This should be taken into account.
3. If there were breach of the undertakings given by Mr Tsesmelis, even assuming that such breach was inadvertent, difficulties in enforcement would arise. However, even if any disclosure was inadvertent, of concern to Dual Gas is that any information could be acted upon by clients of Mr Tsesmelis. Even if this could be detected, Dual Gas would have no contractual relationship with the recipients of the information who, in addition, might not be subject to the contempt jurisdiction of the Tribunal. Dual Gas may have no legal or practical effective recourse, and it would be particularly so if the recipients were in South Africa, China or other overseas countries where Protos Consulting International Pty Ltd operates.
4. Dual Gas appreciates that, if its objection is upheld, this may impact upon the EPA's use of Mr Tsesmelis as an expert witness. This is something which the Tribunal has to balance in determining what the interests of justice require. However, inconvenience caused to the EPA in this regard should not take precedence over the protection of the trade secrets and commercially sensitive information possessed by Dual Gas and which lies at the heart of its reason for seeking to develop a demonstration power station in the first place. Furthermore, no evidence indicating that the EPA will not be able to obtain a replacement expert witness for Mr Tsesmelis (or would have great difficulty in so doing) has been placed before the Tribunal. In Hotrox this was considered to be a factor of considerable importance.
5. Any disclosure, whether inadvertent or not, could seriously impair the value of the technology. Accordingly, despite the provision of the undertakings, the interests of justice require that Mr Tsesmelis not be provided with the Unredacted EPA Documents or other unredacted material.

1. The submissions of Mr Molesworth on behalf of the EPA could be summarised as follows:
2. In an application such as this, the EPA could be described as the 'watchdog' operating on behalf of the Victorian government and the citizens of the State of Victoria. Reference is made to the relevant provisions of the EP Act. The issues raised go to the very heart of the application of that Act and the operation of the Tribunal. On behalf of the people of Victoria, and in operating pursuant to an Act which deals with various perspectives of an operation such as this, and not just the commercial or financial implications, the EPA should be able to present the best possible expert witnesses to assist the Tribunal in arriving at a just and proper conclusion.
3. The technology involved is complex and the project is one of great significance. Consideration of it in the context of the operation of the EP Act should be given not just from the perspective of commercial benefits but also from that of the environment and of what might be contrary to the public interest. Accordingly, this Tribunal, when standing in the shoes of the decision-maker, should have access to the best professional knowledge which is available. There is enormous public interest not just in the project itself but in the manner in which the Tribunal conducts its review and the manner in which it determines what expert evidence should be placed before it.
4. In relation to the position of Tsesmelis and whether or not he should be prohibited from viewing the Unredacted Documents, 'the devil is in the detail'. Affidavit material of Mr Paul William Welfare, General Manager of Dual Gas, and of Mr Tsesmelis should be examined with some precision. The evidence of Mr Tsesmelis to the effect that he and CCT are not competitors of Dual Gas should be preferred. Mr Tsesmelis is highly qualified, with more than 35 years of industry experience, he is independent and has direct knowledge of CCT's business. The same cannot be said about Mr Welfare.
5. Further, Mr Tsesmelis has signed a Form of Confidentiality Undertaking for Experts Ordinarily Residing Outside the State of Victoria as annexed to the Orders of the Tribunal of 19 September 2011. In this regard a totally professional approach has been adopted. There is absolutely no reason to suggest that Mr Tsesmelis would breach such an undertaking. He would destroy the professional reputation which he has built up over 35 years were he so to do.
6. The relevant legal principles which are applicable are set out in the judgment of Einstein J in Idoport Pty Limited and Anor v National Australia Bank Limited and Ors [2001] NSWSC 1024. An order of the court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in the proceedings before it. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of it must be reasonably necessary, and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. The onus is on the party asserting confidentiality which also bears the onus of demonstrating that such confidentiality should continue to be protected by the regime for which it contends.
7. Accordingly, Dual Gas bears the onus of demonstrating that confidentiality should continue to be protected by the regime for which it contends - that is, that Mr Tsesmelis be prohibited from having access to the Unredacted Documents. Any order made by the Tribunal in relation to protecting confidentiality should do no more than is necessary to achieve the due administration of justice. The making of the order must be reasonably necessary, and there must be some material upon which the Tribunal can reasonably reach the conclusion that it is necessary to make the orders sought by Dual Gas. Mere belief that the order is necessary is not sufficient. In arriving at its decision as to whether or not the onus has been discharged, it is necessary for the Tribunal to look at the material and the details of the precise technology involved. When this is done, the result is that the application of Dual Gas seeking to maintain the confidentiality should be dismissed.
8. It is also pointed out that Mr Tsesmelis has made no attempt to hide his relationship with CCT. There is no evidence from Dual Gas that he has ever breached a confidence before or that he is a person not to be trusted with confidential information. There is no evidence that he does not have in place methods and processes to protect the confidential information. The application should be rejected because Dual Gas has not led evidence from which the Tribunal could reasonably reach the conclusion that, because of a hypothetical risk that Mr Tsesmelis may disclose confidential information in breach of the undertakings he has given, it is necessary to make the orders sought. In any event, the undertaking given by him provides sufficient practical protection to Dual Gas. That undertaking is one given both to Dual Gas and to the Tribunal.
9. The objection of Dual Gas based upon Mr Tsesmelis having a role with CCT, which is alleged to be a competitor of Dual Gas, has not been made out. Mr Tsesmelis has always been open about his relationship with CCT and denies categorically that it is a competitor of Dual Gas. Reference is made to his affidavit. CCT has no interest in gasification technology or in moving into such technology in any country, including China. It is not involved in researching, developing, designing, manufacturing or selling its own gasifiers and CCT has no gasification process, no pyrolisis technology, and no product make up processes. The affidavit of Mr Tsesmelis establishes that the coal or natural gas to syngas process forms no part of the CCT technology. The evidence of Mr Tsesmelis should be preferred in this regard.
10. Dual Gas has also based its objection upon the fact that Protos Consulting International Pty Ltd, the consultancy company of Mr Tsesmelis, may provide services to other competitors and potential competitors, leaving to one side CCT. There is no evidence from Dual Gas that any client of Protos Consulting International Pty Ltd is an actual or potential competitor of Dual Gas (other than the allegation made concerning CCT). At its highest, the allegation can be no more than that Protos Consulting International Pty Ltd may provide services to a competitor and that there is a risk that confidential information may be disclosed to, or used for the benefit of, a competitor. Such propositions are hypothetical and the only realistic way that Mr Tsesmelis could disclose confidential information to such a competitor would be through a breach of his undertaking which would in turn destroy his reputation and his business.
11. A further objection by Dual Gas is taken on the basis of an allegation that Mr Tsesmelis has in the past made a number of enquiries in which he sought to obtain information regarding aspects of the technology in question, those enquiries being directed to the Manager of Business Development of the parent company of Dual Gas. Reference is made to paragraph 10(c) and paragraphs 22 and following of the affidavit of Mr Welfare of 27 September 2011 and to the relevant exhibits referred to therein. In his affidavit Mr Tsesmelis has given a detailed explanation as to these enquiries, including that some were made in the context of ascertaining whether the parent company of Dual Gas had a product available for licence or would give a quote for undertaking a coal analysis to assist in determining feasibility. The enquiries made by Mr Tsesmelis were not the actions of a commercial competitor but rather, at least in part, of someone attempting to direct business to, or arrange a transaction with, the parent company.
12. The basic position of the EPA is that the application of Dual Gas should be rejected. Regard should be had to the role of the EPA and what is provided in the EP Act and, bearing that in mind, to the manner in which the Tribunal should conduct the hearing and have available to it the best evidence. Further, the application should fail because Dual Gas has not discharged the onus referred to above. The orders sought by Dual Gas would do more than is necessary to achieve the due administration of justice. The making of the orders is not reasonably necessary. There is no material before Tribunal upon which it can reasonably reach the conclusion that it is necessary to make the orders sought. Statements of mere belief by Mr Welfare that the order is necessary do not constitute a sufficient basis.

1. The reply of Mr Elliott on behalf of Dual Gas can be summarised as follows:
2. In relation to the EP Act, its role and objects, reference is made of the fact that s 1B refers to the integration of economic, social and environmental considerations. Section 60 specifically refers to the fact that persons must not disclose trade secrets, commercially sensitive information and the like obtained during the course of performing duties under the Act. Matters related to economic considerations clearly form part of the fabric of the Act. Cases such as Idoport are not really to the point as they deal with suppression orders. On the other hand, cases such as Mobil and Hotrox are directly on point. Further, what is said by Mr Tsesmelis in his affidavit to the effect that CCT, with which he has a partnering agreement and for which he is a Senior Consultant, has no interest in gasification technology is contradicted by CCT's own brochure which is part of Exhibit D to the affidavit of Mr Welfare of 27 September 2011. Page 3 of that brochure not only has a diagram relating to CCT's technology which diagram includes a gasifier but the text states:

... the new design permits the elimination or reduction of upstream large size air separation for gasification ...

(In a further response in relation to this last-mentioned point, Mr Molesworth directed us to paragraphs 26-33 of the affidavit of Mr Tsesmelis).

1. In our opinion the submissions on behalf of Dual Gas are to be preferred. If it carries an onus, it has discharged it. Its application is successful and is entitled to succeed on its application insofar as Mr Tsesmelis is concerned. We have come to this conclusion for the following reasons which are not listed in order of importance or significance.

(a) At the outset we say that it is not a matter of Dual Gas telling the EPA what expert witnesses it may or may not call. It is not a matter of Dual Gas telling the Tribunal what expert witnesses may or may not be called. This is so irrespective of the role of the EPA as 'watchdog' or as representing the people of Victoria. Whilst it doubtless has those roles and whilst there may be a great public interest in the manner in which evidence is placed before this Tribunal and in how it conducts such a hearing, in the circumstances prevailing these factors do not seem to us to assume the almost paramount importance argued for them by Mr Molesworth. The fact of the matter is that, in the Orders of 19 September 2011, a process or regime was set up pursuant to which Dual Gas could make the very objection and application which have been made. It has complied with the Orders of the Tribunal. It has taken the necessary steps. It is entitled to challenge the provision of the Unredacted Documents to the experts in question.

(b) We are satisfied that Mr Tsesmelis is a potential trade rival of Dual Gas within the meaning of the decision in Mobil, and particularly as expanded upon in Hotrox. In Hotrox what was said by Hayne JA in Mobil was followed and applied and indeed referred to as a 'compelling statement'. We shall return to that. However, what we note more immediately in Hotrox is that the expert in question, Dr Franklin, was, like Mr Tsesmelis, a consultant or professional adviser. He was such in the same field of endeavour (charcoal manufacturing) as Hotrox, effectively the objector. In the present case we are satisfied that the field of endeavour in which Mr Tsesmelis has years of experience and in which he operates as a consultant and professional adviser is the same as that in which Dual Gas operates. Whether it be described as coal technology, clean coal technology, alternative fuels technology, syngas technology or the like, the fields of professional activity and endeavour overlap.

We would then refer to the following extracts from the judgment of Sheppard AUJ in Hotrox at paragraphs 51 and 52:

I recognise that Dr Franklin is not a trade rival of Hotrox. That distinguishes this case from the Mobil case. But each case must be dealt with on its own facts and circumstances ... Nothing that I have said is intended to attribute any dishonest motive or intention to Dr Franklin. What has been said simply states the reality of the matter. I accept that Dr Franklin is now mainly engaged as a consultant and that he is not presently intending to embark upon any enterprise which would involve him in manufacturing charcoal by this or any other method. He is a professional adviser in this field and he appears to be retained by a number of large undertakings in the industry. But one can well imagine a situation in the future - and this was postulated in argument - in which Dr Franklin is asked about the possibility of doing something along the lines which Hotrox claims to do and, having gained the information he would gain on the inspection which he desires to carry out, would be in quandary as to whether, directly or indirectly, to make use of that information in advising his client. And there would be the danger that he may subconsciously disclose something which was covered by his agreement to keep matters learnt on the inspection confidential. It would seem to me that unless he declined to advise any client interested in pursuing a process similar to that of the respondent, there would always be the danger that he would, however unwittingly, make a disclosure which would imperil the confidentiality which he has agreed to preserve.

It is for all those reasons that I consider that the Master's conclusion that the risk of disclosure was slight was a clear error and indicates a miscarriage of the exercise of his discretion. It follows that leave to appeal should be granted and that the appeal should be allowed.

If, in the above extracts, one were to substitute the name of Mr Tsesmelis for that of Dr Franklin, that of Dual Gas for that of Hotrox, and the area of enterprise as being coal technology or clean coal technology for that of charcoal manufacturing, one could basically be talking about the same case and the observations of Sheppard AUJ would be apposite indeed. We consider it to be a helpful and persuasive decision.

(c) The fact that the area of endeavour in which Mr Tsesmelis, via Protos Consultancy International Pty Ltd, performs consultancy work overlaps with the area in which Dual Gas operates is underlined by the fact that, on behalf of clients, he made various enquiries concerning technology of the parent company of Dual Gas. These enquiries, some of which were made on behalf of CCT, related to such matters as whether the coal gasifier technology was licensed and whether or not 'the gasifier is entrained flow type' - we would refer to paragraphs 22-26 of the affidavit of Mr Welfare of 27 September 2011. The details requested were not supplied, but what seems to us to be of some significance is the fact that Mr Tsesmelis made such enquiries. It tends to emphasise that his area of 'trade' expertise and that of Dual Gas do in fact overlap.

(d) Furthermore, given the nature of the consultancy of Mr Tsesmelis via Protos Consulting International Pty Ltd, we do not consider it necessary to go to some ultimate and very precise description of the technology or operations involved.

The very fact that the EPA seeks to use him as an expert in this case and that he has obviously been prepared to accept such a role, and bearing in mind what is sworn to in his affidavit concerning his experience and qualifications, points to the fact that his expertise as a consultant extends to matters relating to the demonstration project at the heart of this case and to areas which may relate to the technology and intellectual property of Dual Gas. If he is not an actual trade rival of Dual Gas, to employ the type of wording used in Hotrox one can well imagine a situation in the future where a client of his consultancy asks about the possibility of doing something along the lines which Dual Gas claims to do. He would then be in the quandary referred to by Sheppard AUJ. The fact that he is an active consultant in relation to this area of activity seems to us to be significant. If he were being proposed as an expert witness and, for example, had retired from the industry or moved permanently into another area of operation, the situation might be different. However, he is being proposed as an expert in an area in which he is still active.

(e) If the above be the case, then what was said by Hayne JA in Mobil also has application. We have already set out in paragraph 13 above, part of which is the compelling statement referred to by Sheppard AUJ. We would again refer to it.

We would point out that, in Mobil, inspection of documents had been directed on terms that included an undertaking as to confidentiality. As is apparent from the observations of Hayne JA set out above, the appeal was successful notwithstanding the existence of the confidentiality undertaking. Just as the observations of Hayne JA were considered applicable, if not compelling, in Hotrox, they are similarly applicable to the present case. Once Mr Tsesmelis is seen as a potential trade rival, the very difficulties referred to in Mobil and Hotrox arise.

(f) Further, it seems to us that Mr Tsesmelis could be described as not just a potential trade rival, but as an actual one. As he has sworn in his affidavit, in his capacity as director and principal consultant of Protos Consulting International Pty Ltd he has a partnering agreement with CCT and is a member of CCT's technical team as a 'Senior Consultant'. We are satisfied that CCT is a trade rival of Dual Gas. There is force in the submission of Mr Elliott to the effect that the statement of Mr Tsesmelis that CCT is, in essence, not interested in coal gasification technologies does not appear to be correct. Its own brochure exhibited to the affidavit of Mr Welfare seems to state to the contrary. Under the heading 'What does our technology offer?' it specifically refers to gasification and, on the same page of the brochure and immediately following the above, under the heading 'The Process' is a diagram specifically showing coal and natural gas going into a gasifier. Further, in so far as there is a conflict between the affidavit material of Mr Tsesmelis and that of Mr Welfare in relation to the situation prevailing, we prefer and accept that that of Mr Welfare to the effect that CCT operates '... in the same sphere of technological research and development, involving the gasification of coal in order to produce value-added products' - see paragraphs 15 and following of the affidavit of Mr Welfare of 27 September 2011. We would also refer to the material which Mr Welfare obtained from the CCT website.

(g) In short, we accept that Mr Tsesmelis is a potential trade rival of Dual Gas by reason of his activities as a consultant. We accept that he is an actual or direct trade rival by reason of his agreement and association with CCT. We accept that CCT is a trade rival of Dual Gas. We are of the view that the decisions in Mobil and Hotrox apply. In addition, we accept the submission that Idoport is a case dealing with suppression orders and is not as directly on point as the decisions in Mobil and Hotrox. That is not to say that it is of no assistance or is totally irrelevant, but the other decisions referred to seem to us to be more cogent.

(h) The ultimate question posed by Hayne JA in the extract from Mobil set out above could be paraphrased as being whether inspection and the confidentiality which is thus destroyed is necessary for the attainment of justice in the particular case. An aspect of this, and one discussed in Hotrox, is whether another sufficiently qualified expert can be retained. There is no evidence to suggest that, in the present case, that poses an insuperable problem. Indeed, it was argued by Mr Elliott that the EPA already possesses or has retained such experts. He also indicated that, if the application of Dual Gas was successful, it may be that the upcoming hearing date may have to be vacated and the timetable previously ordered adjusted. This would be to afford to the EPA the opportunity of engaging another expert should it so desire. In our view, on the basis of the material before us, it is not necessary for the attainment of justice in this particular case that the confidentiality of the information be destroyed in the manner referred to in Mobil and Hotrox.

(i) As no material of substance in relation to this last-mentioned issue has been placed before us, we can only say that we are not persuaded that justice could not be delivered if, should the EPA elect to attempt to replace Mr Tsesmelis as an expert, it be given the opportunity so to do.

In summary, we can say that Mr Tsesmelis, both because of his consultancy and because of his direct links with CCT, represents both a potential trade rival and an actual trade rival to Dual Gas. There is no argument but that the information under discussion is confidential. There is no argument but that the project under consideration is a demonstration one and that the costs involved run to many, many millions of dollars. No argument was raised in opposition to submissions that Dual Gas has extremely valuable intellectual property contained in or associated with the project. When these matters and all of the above are taken into account, it seems to us that Dual Gas is entitled to succeed in its application.

1. Dual Gas is successful. We consider its objection pursuant to Order 4 of the Orders of the Tribunal of 19 September 2011 to have been properly made and to have been justified. Accordingly, it is not obliged to provide to Mr Tsesmelis the Unredacted Documents. As previously stated, we are not of the view that the objection insofar as it relates to Dr Ross is valid and has been made out. The application insofar as it relates to Dr Ross is unsuccessful and is dismissed. We shall hear the parties as to the precise nature of the orders, including any ancillary orders, that are required.