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[1995] HCA 19
High Court of Australia
1995-04-07
Mason CJ, McHugh JJ
Original judgment source is linked above.
For the reasons which the Chief Justice gives, I agree that, when one party produces documents or discloses information to an opposing party in an arbitration that is to be heard in private, the documents or information are not clothed with confidentiality merely because of the privacy of the hearing. Nor does the use of a document in such proceedings make the document confidential. I agree also that absolute confidentiality of documents produced and information disclosed in an arbitration is not a characteristic of arbitrations in this country. Accordingly, a party who enters into an arbitration agreement is not taken merely on that account to have contracted to keep absolutely confidential all documents produced and information disclosed to that party by another party in the arbitration.
If a party to an arbitration agreement be under any obligation of confidentiality, the obligation must be contractual in origin. A term imposing an obligation of confidentiality could be expressed in an arbitration agreement but such a term would be unusual. Nor is such an obligation imposed by the Commercial Arbitration Act 1984 Vic. A term is implied only where, inter alia, it is necessary [36] to give to the contract "such business efficacy as the parties must have intended" [37] . The intended business efficacy must be inferred "from the very nature of the transaction" [38] . The parties may not have consciously adverted to the subject matter of the term which is said to be implied, but implication is determined according to their presumed intention [39] . Obligations which, if proposed to the parties when they entered into their contract, would not have been accepted by both are not thereafter implied in the contract [40] .
Some obligation of confidentiality could be implied simply from the fact that, when a party claims the production of documents or the disclosure of information under an arbitration agreement for the purposes of the arbitration, the production or disclosure is given solely for that purpose. A duty to produce a document or to disclose information to another party, whether pursuant to an express stipulation or pursuant to the arbitrator's power to order discovery or production, is a duty imposed for the purposes of the arbitration [41] . Production of documents or disclosure of information is not given to a party to be used for whatever purpose the party chooses. The duty to produce documents or to disclose information to another is an invasion of a party's right to keep the documents and information confidential and the burden of that duty would be increased beyond that contracted for if there were no restriction on the other party's freedom to disseminate the documents and information [42] . To give business efficacy to the limited purpose of production or disclosure, an undertaking of confidentiality must be implied. But it does not follow that an undertaking of absolute confidentiality is to be implied. At the time when the arbitration agreement was entered into, the party who is to receive the documents or information may have been in such a situation that it would be unreasonable to predicate of that party an intention to keep absolutely confidential the documents produced or the information disclosed. To the extent that a party would not have agreed to keep documents or information confidential, the implied obligation of confidentiality must be qualified.
Where a party is in possession of a document or information and is under a duty at common law or under statute to communicate the document or information to a third party, no contractual obligation of confidentiality can prohibit the performance of that duty [43] . Moreover, a party may be under a duty, not necessarily a legal duty, to communicate documents or information to a third party who has an interest in the progress or outcome of the arbitration. To take an example, it could not be supposed, in the absence of a clear contrary indication, that a party which is a wholly owned subsidiary of a holding company intended to keep confidential from its holding company documents or information relating to the matter in dispute in the arbitration. Nor could a party be taken to have intended that it would keep confidential documents or information which it wished to reveal for the protection of its own interests. Nor could a party be taken to have intended that it would keep confidential documents or information when the party has an obligation, albeit not a legal obligation, to satisfy a public interest - more than mere curiosity - in knowing what is contained in the documents or information.
A question of confidentiality arose in Tournier v National Provincial and Union Bank of England [44] , where Bankes LJ held that a banker's implied obligation of confidentiality with respect to a customer's account and affairs was qualified "(a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer". Scrutton LJ [45] and Atkin LJ [46] put the qualifications in slightly different terms. This case was relied on by Colman J in Hassneh Insurance Co of Israel v Mew [47] . His Lordship said [48] :
In my judgment a similar qualification must be implied as a matter of business efficacy in the duty of confidence arising under an agreement to arbitrate. I would imply an obligation of confidentiality as a matter of business efficacy but limit the implication by reason of the likelihood that one or other party would have reserved the right to disseminate otherwise confidential material in certain situations. But, in substance, I respectfully agree with his Lordship's observation as to the qualification of the obligation of confidentiality. 1. [1924] 1 KB 461 at 473. 2. Tournier [1924] 1 KB 461 at 481 3. Tournier [1924] 1 KB 461 at 486 4. [1993] 2 Lloyd's Rep 243 at 248-249. 5. Hassneh Insurance [1993] 2 Lloyd's Rep 243 at 249.
I would hold that, in an arbitration agreement under which one party is bound to produce documents or disclose information to the other for the purposes of the arbitration and in which no other provision for confidentiality is made, a term should be implied that the other party will keep the documents produced and the information disclosed confidential except (a) where disclosure of the otherwise confidential material is under compulsion by law; (b) where there is a duty, albeit not a legal duty, to the public to disclose; (c) where disclosure of the material is fairly required for the protection of the party's legitimate interests; and (d) where disclosure is made with the express or implied consent of the party producing the material.
To imply an obligation of qualified confidentiality in this way substantially equates the contractual obligation of a party under an arbitration agreement with the obligation of a party who impliedly gives an undertaking of confidentiality to the court when obtaining an order for discovery in an action. The underlying principle in the latter situation is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a "collateral or ulterior purpose" [49] . That phrase is not used in a pejorative sense, as Lord Diplock said in Home Office v Harman [50] , but it is used "merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, [the solicitor for a party] was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people's documents." If the duty of production or disclosure in an arbitration were ordered by a court, an undertaking to the court to use the documents produced or information disclosed only for the purposes of the arbitration would be implied and would be enforced by proceedings for contempt. But such an undertaking "can, in appropriate circumstances, be released or modified by the court" [51] . That dispensing power is not freely exercised [52] , but it will be exercised when special circumstances appear [53] . In the Federal Court, special circumstances have been held to exist where "there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present" [54] . It is unnecessary to consider whether the dispensing power should be so broadly defined. It is relevant to note only that the obligation enforceable as an undertaking to the court in the case of a curial order is not unqualified.
In the present case, the Minister has a statutory right under the State Electricity Commission Act 1958 Vic (SEC Act) [55] to obtain information from the State Electricity Commission of Victoria (SECV). It is the duty of SECV to furnish the Minister with the information required under that sub-clause and that duty cannot be defeated by any contractual duty to keep documents or information confidential. Any implied obligation of confidentiality must be qualified accordingly. Further, the Gas and Fuel Corporation of Victoria (GFC) and SECV are public authorities [56] . They are engaged in the supply of energy in the State of Victoria [57] . The award to be made in the respective arbitrations will affect the price of the energy supplied by the appellants to GFC and SECV and by them to the public. The public generally has a real interest in the outcome, and perhaps in the progress, of each arbitration which the relevant public authority has a duty to satisfy. GFC and SECV have a duty - possibly a legal duty in the case of SECV [58] but at least a moral duty in the case of both public authorities - to account to the public for the manner in which they perform their functions. Public authorities are not to be taken, prima facie, to have bound themselves to refrain from giving an account of their functions in an appropriate way: sometimes by giving information to the public directly, sometimes by giving information to a Minister, to a government department or to some other public authority.
The duty to convey information to the public may not operate uniformly upon each document or piece of information which is given to GFC or SECV for the purpose of the particular arbitration. Performance of the duty to the public is unlikely to require the revelation of every document or piece of information. It may be possible to respect the commercial sensitivity of information contained in particular documents while discharging the duty to the public and, where that is possible, the general obligation of confidentiality must be respected.
The appellants accept that GFC and SECV are at liberty to disclose to the Minister "if authorised by statute to do so, or for the purpose of the arbitrations" documents and information obtained by them from the appellants in the course of the arbitrations. That concession fails to qualify the implied obligation of confidentiality to the extent that, in my opinion, accords with the intention that ought to be attributed to GFC and SECV at the time when they entered into the respective arbitration agreements. GFC and SECV are both governed by bodies whose constitution is determined or substantially determined by the Governor in Council [59] . The Minister may require GFC to inquire into the steps required, inter alia, to secure the safe, economical and effective supply of gas and fuel in Victoria [60] , all financial accounts are to be forwarded to the Minister [61] and the Minister may direct GFC to provide the Minister with an annual report on the measures taken in the previous financial year to monitor its compliance with the Act and regulations in relation to the supply of gas [62] . The Minister may direct SECV as to the policies it is to give effect to [63] . SECV is to give effect to any direction given to it by the Minister as soon as possible and to report to the Minister thereon [64] . SECV is to operate as far as practicable in accordance with the criteria established from time to time by the Minister with respect to efficiency, economy, safety and reliability [65] . The Minister is responsible for convening the annual general meeting of SECV and may convene other meetings at any time [66] . The Government of Victoria has a continuing financial interest in the functioning of both authorities. In the ordinary course of administration of the relevant Acts and in the performance by GFC and SECV of their respective functions, information on energy matters would have to be passed from GFC and SECV respectively to the Minister, and vice versa. Neither GFC nor SECV could be taken to have impliedly undertaken to keep confidential from the Government or the Minister documents or information relevant to the administration of the energy portfolio. The implied obligation of confidentiality is qualified accordingly.
The limitations on the freedom of GFC and SECV to disclose confidential information and documents discovered by the appellants for the purposes of the arbitration do not accord with declarations which the appellants now seek as set out in the Chief Justice's judgment. In the circumstances, I would order that the matter be remitted to the Supreme Court of Victoria to reformulate the declarations or to make such other orders with respect to particular documents or classes of documents as are appropriate and consistent with these reasons for judgment.
I agree with the judgment of the Chief Justice and have nothing to add.
The background to this appeal, including the relevant provisions of the two sales agreements made between the first and second appellants, on the one hand, and the Gas and Fuel Corporation of Victoria (GFC) and the State Electricity Commission of Victoria (SEC) respectively on the other, appears in the judgment of the Chief Justice.
The appeal gives rise to three questions, which to a large extent overlap. The questions may be identified as follows:
Propositions such as the following from Russell on the Law of Arbitration [67] are stated as if they are self-evident:
Arbitration is a private tribunal for the settlement of disputes. The public, therefore, may not be admitted if their admission is objected to by either party or the arbitrator. 1. 20th ed (1982), p 260.
Persons entitled to attend the hearing of an arbitration have been identified in the following way [68] :
Persons entitled to attend the hearing include the following:
(1) each party - if the party is a company, this will include any officer or servant whom the company desires to be present;
(2) any person whom any party desires to represent him or it at the hearing. This may be counsel, solicitor, surveyor or anyone else. However, if it is the intention of the party to be represented by solicitor or counsel, he should notify such intention in good time so as to enable the opposing party to be represented by solicitor or counsel if thought fit;
(3) any person whom a party wishes to have present as a witness, or otherwise to assist in presentation of the party's case;
(4) a shorthand or other notetaker, if the party wishes to have notes taken for the proper presentation of his case in the instant arbitration.
In this regard there are decisions which Brooking J, in the Appeal Division of the Supreme Court of Victoria [69] , described as "decisions dealing with complaints about the exclusion of persons whose presence was said to be necessary to the proper conduct of the arbitration by a party" [70] . Those decisions involved the power of an arbitrator to exclude a particular person from the hearing, though the person was present at the instance of a party. While the exclusion of strangers was not directly involved in any of these cases, a right to exclude strangers may be inferred from the fact that what was under attack was the arbitrator's power to exclude a person who fell within the categories identified by authors such as Bernstein and Wood as those entitled to attend.
A further relevant line of authority is constituted by those cases which indicate that two or more arbitrations can only be heard together with the consent of the parties. In Oxford Shipping Co Ltd v Nippon Yusen Kaisha (The Eastern Saga) [71] Leggatt J set aside an arbitrator's order that two arbitrations be heard together. The decision was based directly on the privacy of arbitrations, a concept that "derives simply from the fact that the parties have agreed to submit to arbitration particular disputes arising between them and only between them" [72] . In Bibby Bulk Carriers Ltd v Cansulex Ltd [73] Hirst J relied on the authority of The Eastern Saga in saying: "I accept that the arbitration proceeding is a private one, but this arises simply and solely as a result of the contract between the participants."
The Eastern Saga must be read in the light of the judgment of Cole J in Aerospatiale Holdings Australia Pty Ltd v Elspan International Ltd [74] . Cole J referred a number of disputes to arbitration. In doing so he appointed the same person as arbitrator for all disputes and directed that, unless the arbitrator decided otherwise, all disputes would be heard together. Privacy was treated as one factor to be weighed along with other "material circumstances" in the exercise of the court's discretion [75] . His Honour distinguished The Eastern Saga on the ground that in the case before him the parties to the arbitrations were not in reality different: "Although they may technically be "strangers" to that dispute, there is no realistic sense in which that is so." [76] Jacobs [77] criticises Cole J's decision, saying that its effect is that in New South Wales "the principle of privacy can no longer be said to apply". In the present case Brooking J disputed this analysis of Aerospatiale , stating that Cole J's judgment recognises the importance of privacy in arbitrations [78] .
Whatever the current state of the law with respect to the joint hearing of arbitrations (on which it is unnecessary to express an opinion), it is clear, as Brooking J recognised, that "it is and has been for many years, if not indeed ever since the emergence of arbitration, the practice for arbitrations to be conducted in private" [79] . Parties agree to refer their disputes to arbitration on the assumption that the hearing will be conducted in private [80] . The law has given effect to this understanding in a number of ways, without any clear recognition of it as an independent legal rule. Privacy should be implied as a term of the agreement to arbitrate; the implied term is attached as a matter of law rather than to give business efficacy to the agreement [81] . A term is implied as a matter of law "as the nature of the contract itself implicitly requires" [82] . The very nature of arbitration agreements, the established practice for arbitrations to be conducted in private and the importance attached to privacy in arbitration hearings indicate that a term requiring privacy should be implied as a matter of law.
If there is no restraint on a party to an arbitration making public what was said or done at an arbitration, including the contents of documents tendered to the arbitrator, there would be little point in excluding strangers from an arbitration [83] . Effect was given to this approach in Dolling-Baker v Merrett [84] when the English Court of Appeal restrained a party to an arbitration from disclosing, in a later action, documents relating to the arbitration. The Court accepted, however, that if discovery and inspection of the documents are necessary for the fair disposition of the later action, they may be ordered.
In the present appeal the respondent Minister sought to draw a distinction between the privacy attaching to an arbitration hearing and the confidentiality attaching to what takes place at such a hearing. While clearly it is not possible to say that every aspect of an arbitration is confidential in every circumstance, no sharp distinction can be drawn between privacy and confidentiality in this context. They are, to a considerable extent, two sides of the same coin. The privacy of an arbitration hearing is not an end in itself; surely it exists only in order to maintain the confidentiality of the dispute which the parties have agreed to submit to arbitration.
A distinction between privacy and confidentiality has been drawn in the context of court proceedings. For example, legislatures have made provisions allowing judges to prohibit the publication of evidence given in open court [85] . This may be done in conjunction with the closing of the court, but the two need not be done together [86] . There is also a line of authority which suggests that judges have inherent power to prohibit the publication of certain matters arising during the trial, such as the identity of witnesses, even though the matters are raised in open court [87] .
However no analogy can fairly be drawn between arbitrations and court proceedings in this regard. The right to publish a report of court proceedings is an important common law right that is "vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice" [88] . Thus even a statutory power to exclude the public from proceedings will not necessarily abrogate this common law right [89] . Furthermore, when information given in court proceedings is protected, it is not the publication per se that is objectionable, rather it is the contempt of court resulting from disobedience of the non-publication order. Only publications which interfere with the due administration of justice will of themselves amount to a contempt of court [90] . And even when the guiding concern is the "due administration of justice" rather than the private rights and interests of parties, there is still some recognition that the privacy of hearings and the non-publication of matters raised at trial to a large extent go together. Thus when a witness reveals his or her identity at an open court hearing, a previous non-publication direction may be taken to have been effectively abandoned [91] .
It is true that until Dolling-Baker there had been no English decision supporting a principle of confidentiality of arbitration hearings. And the one Australian decision that touches the point, Alliance Petroleum Australia NL v Australian Gas Light Co [92] , tends to be against the existence of an obligation of confidentiality. But the lack of authority is inconclusive. No doubt, it is possible to infer therefrom the absence of such an obligation [93] . But, equally, it may well be that the long established acceptance of privacy has carried with it an assumption of confidentiality, at least in general terms [94] .
It is also true that complete confidentiality of the proceedings in an arbitration cannot be achieved. The Chief Justice gives illustrations of circumstances in which a party to arbitration proceedings must be able to disclose aspects of the proceedings to others. But the appellants did not contend for a principle of complete confidentiality. Their counsel said:
We are not contending that they are secret proceedings, in the sense that there is an absolute shroud over them at all; we just say that the documents and information that are provided for the purposes of this resolution in private of this private dispute should be treated as private and not disclosed except for the purposes of the dispute or as required by law.
In this regard it does not advance the matter to refer to such situations as a party to an arbitration over the building of his house, being asked by his wife: "How did it go?" [95] It is not hard to visualise situations in which disclosure by a party may be incidental and of no consequence. But the issue is whether there is a principle of confidentiality upon which one party may rely to restrain the disclosure by the other party of information given at the arbitration which the first party wishes to protect from disclosure. Ordinarily, that party will only seek to do so where the disclosure may have some adverse consequence.
Much of the difficulty that has surrounded this litigation since it began in the Supreme Court of Victoria has stemmed from the varying forms of declarations for which the parties have contended. The chameleon-like character of the declarations has tended to push the debate into the area of semantics. Initially the parties took their stands on propositions cast in virtually absolute terms. That is, the Minister was arguing for a declaration that all information disclosed was not subject to any obligation of confidence, while the appellants sought declarations that any documents or information supplied were to be treated in confidence as between the parties. These rival contentions were later modified, to take on a more specific shape. However, they did not assume a final form until the last day of the hearing in this Court.
As a result of the Appeal Division's decision, there are two declarations extant and the argument before this Court necessarily focused on them. They are:
6c[GFC] is not restricted from disclosing information to the Minister and third persons by reason only that: -
(a) the information was obtained by it from Esso/BHP in the course of or by reason of arbitration pursuant to the 1975 Sales Agreement; and
(b) the information has not otherwise been published.
6fSEC is not restricted from disclosing information to the Minister and third persons by reason only that: -
(a) the information was obtained by it from Esso/BHP in the course of or by reason of arbitration pursuant to the 1981 Sales Agreement; and
(b) the information has not otherwise been published.
In this regard it is necessary to mention the State Electricity Commission Act 1958 Vic. Clause 4(2) of "Business and Rules" in the Sixth Schedule to the Act empowered the Minister to obtain from SEC "all documents papers and minutes which he requires either for Parliament or himself" [96] . There is no comparable provision in the Gas and Fuel Corporation Act 1958 Vic. It is clear that SEC cannot, by declaration, be restricted from disclosing information to the Minister which the Minister was entitled to under the State Electricity Commission Act.
In terms of formulation, it is easy enough to express a principle of non-confidentiality. In effect, that is what the Minister has done in declarations 6c and 6f which he seeks to uphold. But it is much harder to express a principle of confidentiality which accepts, as it must, that there are significant exceptions. And this has been the appellants' difficulty from the outset of this litigation. A principle of confidentiality, expressed to be subject to "all just exceptions" or the like, is a principle so nebulous as to be hardly a principle at all. Brooking J referred to the problem in these terms [97] .
But one of the great obstacles to the adoption of the principle of confidentiality now put forward lies in identifying and stating the exceptions which will prove the rule, particularly that permitting disclosure where the interests of the party require it. I could not accept a general rule which was not subject to some such exception, having regard to what I believe occurs in practice and to what I believe to be "equitable". But in what terms is the exception to be expressed? Later his Honour said [98] : The difficulty in formulating both the general rule and the exceptions (for one cannot consider the one without the other) tells against its recognition. 1. Esso Australia Resources Ltd v Plowman [1994] 1 VR 1 at 31 2. Esso Australia [1994] 1 VR 1 at 32.
Colman J, in Hassneh , was conscious of the difficulties; nevertheless he recognised an obligation of confidentiality, saying [99] :
It is reasonably clear that such documents are subject to a duty of confidence. They are merely the materials which were used to give rise to the award which defined the rights and obligations of the parties to the arbitration. Accordingly, that qualification to the duty of confidentiality based on the reasonable necessity for the protection of an arbitrating party's rights against a third party cannot be expected to apply to them. It is the final determination of rights expressed in the award which is pertinent as against third parties, not the raw materials for that determination. The relevant exception in the case of such documents is an order or leave of the Court. The duty of confidence to which Colman J referred was a duty which his Lordship derived from the privacy attached to an arbitration hearing. He found that privacy to be an implied term of an agreement to arbitrate [100] . Colman J then went on to say [101] that "the requirement of privacy must in principle extend to documents which are created for the purpose of that hearing". In putting it that way, his Lordship must be taken as viewing confidentiality in arbitrations as an aspect of the implied term in an agreement to arbitrate, namely, that the hearing shall be held in private. 1. Hassneh [1993] 2 Lloyd's Rep 243 at 250. 2. cf Dolling-Baker v Merrett [1990] 1 WLR 1205 at 1213[1991] 2 All ER 890 at 899where Parker LJ said that the obligation of confidentiality arises "out of the nature of arbitration itself". 3. Hassneh [1993] 2 Lloyd's Rep 243 at 247.
It is curious that while the question of confidentiality in arbitration proceedings has arisen from time to time, the courts, until recently, have not found it necessary to enunciate any relevant principle. In the end the matter is not one to be resolved in general terms for it is not possible to formulate a principle based on complete confidentiality or a complete lack thereof. It is necessary to focus on particular categories of documents and information. Nevertheless, this must be done against some background of principle, even if only to identify exceptions.
In conventional litigation, documents which are disclosed and produced by one party to another pursuant to the rules of court relating to discovery of documents are subject to an implied undertaking that they will not be used for any purpose other than in relation to the litigation itself [102] . There is no reason in principle why the same obligation should not attach to documents produced at the instance of an arbitrator. Indeed, given the private nature of the arbitration hearing, there is every reason why the obligation should attach. In Hassneh Colman J said [103] :
In as much as the parties to an English law arbitration impliedly agree to use English discovery procedure, or at least to submit to the possibility that such procedure will apply, it must by implication be their mutual obligation to accord to documents disclosed for the purposes of the arbitration the same confidentiality which would attach to those documents if they were litigating their disputes as distinct from arbitrating them. The fact that the proceedings are in private lends weight to the necessity for that implication. What Colman J said of the position in England applies equally to Australia. 1. Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 at 618-620 Riddick v Thames Board Mills Ltd [1977] QB 881 at 895-896 Home Office v Harman [1983] 1 AC 280 2. Hassneh [1993] 2 Lloyd's Rep 243 at 247.
Next, there is the award itself and, where applicable, the reasons for that award. An award may, with the leave of the Supreme Court, be enforced in the same manner as a judgment or order of the Supreme Court to like effect [104] . To that extent, as Colman J observed in Hassneh [105] , an award "is at least potentially a public document for the purposes of supervision by the Courts or enforcement in them". In any event, an award gives rise to rights and obligations between the parties which may be enforced as independent contractual obligations [106] . Furthermore, an award may be challenged in the courts, by reason of the misconduct of the arbitrator or for such other reason as may be available. In these circumstances any duty of confidentiality must yield to a right in a party to an award to disclose that award to a third party where it is reasonably necessary to do so to protect the interests of the party under the award.
What then of any reasons accompanying an award? The reasons may refer to the pleadings, the evidence and the arguments. Of course if there is no confidentiality attaching to arbitrations, that is of no consequence. If some confidentiality does attach, it may be a matter of concern. However, to require a party seeking to enforce an award (or indeed, to resist enforcement) to observe confidentiality may place that party at a considerable disadvantage. The award may only be fully intelligible when read with the reasons. Furthermore, the reasoning which led to the terms of the award may serve to explain those terms and perhaps be a basis of challenge to the award. It is therefore necessary to attribute to the reasons the same qualification attributed to the award, namely, that they may be disclosed to a third party where it is reasonably necessary to do so to protect the interests of a party to the arbitration.
That leaves for consideration whether, despite the qualifications already mentioned, there is nevertheless some obligation of confidentiality attaching to the documents and information emanating from an arbitration. I would find such an obligation to be a term implied as a matter of law in commercial arbitration agreements. The term is implied from the entry by the parties into a form of dispute resolution which they choose because of the privacy they expect to result. If this is said to confuse privacy and confidentiality, the answer is that they are not distinct characteristics. As Colman J said in Hassneh [107] :
The disclosure to a third party of [a note or transcript of the evidence] would be almost equivalent to opening the door of the arbitration room to that third party. Any aspect of disclosure to third parties must infringe the privacy of the arbitration. Thus, if one party is free to disclose to a newspaper or media outlet the progress of an arbitration and the evidence adduced in its course, the notion of privacy is meaningless. There must be an underlying principle, significantly qualified in accordance with these reasons, that a party to an arbitration is under a duty not to disclose to a third party documents and information obtained by reason of the arbitration. 1. [1993] 2 Lloyd's Rep 243 at 247.
Although it did not arise in this appeal, I agree with the Chief Justice that there is a "public interest" exception to the principle. But it is unnecessary and inappropriate to discuss the boundaries of that exception.
The reasons which have led to a broad principle of confidentiality have answered the question of documents discovered by one party to another in the course of the arbitration. But whether or not there is such a principle, confidentiality clearly attaches to this category of information.
It follows from these reasons that declarations 6c and 6F cannot stand. The appeal should be allowed and those declarations set aside. The parties should be given an opportunity to make written submissions as to the orders that should be made to give effect to these reasons. However, I would not dissent from the view of the majority that the matter should be remitted to the Supreme Court of Victoria.
Esso Australia Resources Ltd
Plowman
High Court of Australia Mason CJ Brennan, Dawson, Toohey and McHugh JJ Esso Australia Resources Ltd v Plowman [1995] HCA 19
If the parties to an English law contract refer their disputes to arbitration they are entitled to assume at the least that the hearing will be conducted in private. That assumption arises from a practice which has been universal in London for hundreds of years and [is], I believe, undisputed. It is a practice which represents an important advantage of arbitration over the Courts as a means of dispute resolution. The informality attaching to a hearing held in private and the candour to which it may give rise is an essential ingredient of arbitration. 1. Domke on Commercial Arbitration (Prac Guide), s4.01, 4.06. 2. Oxford Shipping Co Ltd v Nippon Yusen Kaisha [1984] 3 All ER 835 at 842 Bibby Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155 at 166-167 3. Russell on the Law of Arbitration, 20th ed (1982), p 260; Mustill and Boyd, Law and Practice of Commercial Arbitration in England, 2nd ed (1989), pp 303-304. 4. [1993] 2 Lloyd's Rep 243 at 246-247.
A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit nor to use them or copies of them for any collateral object If necessary an undertaking to that effect will be made a condition of granting an order. Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it. 1. Alterskye v Scott [1948] 1 All ER 469 at 471 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 at 618-620, per Talbot J; Riddick v Thames Board Mills Ltd [1977] QB 881 at 895-896, per Lord Denning MR; Home Office v Harman [1983] 1 AC 280 2. 1st ed (1885), p 238.
(1986) 5 NSWLR 465
(1983) 34 SASR 215
(1988) 164 CLR 539
(1980) 147 CLR 39
(1987) 10 NSWLR 86
(1982) 149 CLR 337
(1986) 160 CLR 226
(1991) 29 FCR 576
(1992) 38 FCR 217
(1994) 53 FCR 125
(1992) 28 NSWLR 321
(1992) 67 ALJR 177