HAYDEN LEIGH WHITE as joint and several receiver and manager of EAST ROCKINGHAM RRF HOLD CO PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) -v- ACCIONA CONSTRUCTION AUSTRALIA PTY LTD [No 3] [2026] WASC 21 (5 February 2026)

(a) an affidavit of Edris Sheikh filed on 17 December 2025;

(b) three affidavits of Richard Edwards filed 3 December 2024 (First Edwards Affidavit), 12 December 2025 (Sixth Edwards Affidavit), and 16 January 2025 (Seventh Edwards Affidavit); and

(c) an affidavit of Dohoon Kim filed on 1 December 2025.

1. In opposing the application, the plaintiffs and the Acciona parties relied on an affidavit of Phillip Charles Coady filed on 13 January 2026 (Fifth Coady Affidavit), which annexed a letter from the plaintiffs' expert, Mr Crummack.

1. The legal principles that govern this application were not in dispute and can be summarised as follows:[2]

(a) the onus of establishing the claim for confidentiality is on the party making the claim;

(b) if the documents are established to be confidential, the question as to what orders should be made by the court is a balancing exercise; and

(c) in determining where the balance lies, the court will take into account a range of factors, including the nature and content of the confidential information as well as its age; the extent to which the information could be used to further parties' commercial interests; and what measures can be put in place to protect the confidentiality of the information from disclosure.

1. Mr Sheikh's affidavit sets out the basis on which KVI contends the index to the documents is confidential. In essence, his evidence is as follows:

(a) KVI used an electronic document and data management platform called Project Information and Retrieval System ('PIRS') to manage the documents it produced in undertaking the works under the contract;

(b) under the contract, KVI was not obliged to disclose the contents of its PIRS system to ProjectCo or the Acciona parties;

(c) it has never shared an index of documents with anyone on the projects it has undertaken. The only documents it shares are those required to be produced to the owner or relevant contractor to enable the operation and maintenance of the relevant plant;

(d) the index was produced to the plaintiffs in accordance with orders of the court on 2 December 2025 and then on 23 December 2025; and

(e) the index is not just a list of file names, but is a 'structured overview of KVI's internal documentation that reflects KVI's proprietary business practise and methodologies' which 'when read by a person who has a basic level of experience in the delivery of turn-key waste to energy plants, provides a detailed map of KVI's business practises including how projects are structured, which documents are prioritised, and the sequence of project execution' and 'reveals the internal logic and workflow of KVI's operations, offering insights into decision-making processes, risk management, and quality assurance protocols'.

1. The Acciona parties and the plaintiffs deny that Mr Sheikh's evidence discharges the KVI parties' onus of establishing the index is confidential. In particular, based on a letter from Mr Crummack, who has 35 years' experience in waste to energy facilities, Acciona says the index is not a list of documents but an activity report; that some of the entries are unclear; the index does not disclose any trade secrets or confidential information; and that the index is not logically organised.
2. In answer to the contention that the index is an activity report, the KVI parties have adduced an extract from the website of the supplier of the PIRS platform which describes it as 'correspondence and Document Management combined in one Tool'.
3. In deciding this application, it is important to record that it is not possible on an interlocutory application, in the absence of cross‑examination, to resolve some of the factual issues between Mr Sheikh and Mr Crummack. In deciding the application, I have taken into account the evidence which is not in dispute as well as the broader context of the application.
4. The document in question is an Excel document entitled 'PIRS Report Extract'. Each page contains, in the header, a statement that it is the copyright of KVI and that the document and the information in it are 'proprietary to KVI and confidential'. The document itself contains nine columns, being:

(a) ID - each document is numbered sequentially from 1 to 19,526;

(b) Customer Doc Number - this is blank for many of the rows in the document. Where there is an entry, it is an alpha-numeric code that senior counsel for KVI says includes reference to relevant subcontractors;

(c) Customer Revision - this is also blank for many of the rows in the documents. On its face, it appears to refer to the number revision of the document in question;

(d) Title - self-evidently, this contains the title of the document. In many cases, this is a relatively detailed description. In other cases, the titles do not have a readily discernible meaning;

(e) Customer Status - this column is incomplete in most rows. Where it has an entry, it contains the description of 'issued for information';

(f) Customer Category - this column is blank throughout the document;

(g) Last Transmittal - this column is blank in many instances in the document. Where it contains information, it is an alpha-numeric code which is different to the Customer Doc Number;

(h) Last Transmittal Date - this column is also blank in many instances. Where there is information in the row, it is the date in a format DD/MM/YYYY; and

(i) Issue Date - this column is also blank in many instances. Where there is information in this column, it is the date in a format DD/MM/YYYY.

1. In support of the application, senior counsel for KVI placed significant weight on the decision of Vickery J in DC Payments Pty Ltd v Next Payments Pty Ltd.[3] In that case, his Honour considered whether a Master Customer List, which had been inadvertently provided to the other party, was a confidential document. In that case, it was submitted, and Vickery J appeared to accept, that the document should be assessed by reference to the document as a whole and not by considering whether each piece of information contained in the document is confidential.
2. Many of the submissions by the plaintiffs and the Acciona parties focused on the high level of generality of Mr Sheikh's evidence and the failure to dissent to specific detail by reference to any particular line items in the document. While I accept this submission is well-founded, I do not consider that this, of itself, is a sufficient reason to dismiss the application. The index contains more than 19,500 entries. In my view, it would not be cost-effective nor consistent with the obligations set out in O 1 r 4A and 4B of the Rules for a lengthy affidavit to have been prepared which addressed each of the entries or even a significant proportion of them.
3. In this case, the uncontroverted evidence is that the index (or report) has been produced by KVI from the PIRS system. The PIRS system is used by the KVI parties as its document management system on waste to energy projects. Only employees of KVI have access to this system. Where documents are made available to other parties, the document is transmitted or uploaded to a different system. KVI does not grant any external party access to PIRS or any part of it. Where a document is transmitted to a third party, that act of transmission is recorded in the PIRS system.
4. Given these matters, I accept KVI's submission that the index, as well as the details recorded in it, is confidential. It is not public property or known publicly. On the basis that only some of the documents contain details as to the customer doc number, customer status, last transmittal and dates, I infer that some skill, effort and ingenuity has been applied by KVI and its employees in the allocation of customer doc numbers for the documents that are to be provided to an external party.
5. For these reasons, I accept that KVI has discharged its onus of establishing the index or report is a confidential document.

Should the Acciona parties have access to the index?

1. The question then arises as to what if any orders should be made in relation to the index. As set out above, this is a balancing exercise. On the one hand, I accept that it is usual and appropriate for all parties to have access to all documents filed in proceedings and that in most cases, the substantive obligation, known as the Harman obligation, is sufficient to protect a party's interests even where a document is confidential.
2. In considering what orders should be made, I have had particular regard to the following matters.
3. First, Acciona and the KVI parties are trade rivals. KVI has significantly greater experience in waste to energy projects, having completed more than 600 projects over almost 90 years. In contrast, Acciona is a relatively new market entrant.
4. Second, the information contained in the index contains information about the types of documents produced by KVI on a project of this nature. From the detailed description in the title of at least some of the documents, I accept that granting access to Acciona may give Acciona an advantage that it would otherwise not be entitled to.
5. Third, the index was ordered to be produced to the plaintiffs for a relatively limited purpose. Namely, it is a high-level document that was provided to the plaintiffs for the purpose of enabling them to produce a more detailed schedule of the documents they contend they are entitled to in these proceedings.
6. Fourth, no relief is sought by the plaintiffs against Acciona in these proceedings. Acciona is a necessary party to the proceedings because it is a party to the contract which is the subject of the dispute. The counterclaim filed by the KVI parties against Acciona does not relate to this index; it concerns a subset of these documents which are the subject of a separate index.
7. Fifth, the context of this application includes the fact that the plaintiffs have retained Acciona to complete the work on the waste to energy project that is the subject of the dispute between the parties. In the plaintiffs' submissions to the court, it was not clear whether access to the index was sought for the Acciona parties to enable Acciona in its capacity as a party to these proceedings to consider the index or to enable Acciona in its capacity as a contractor engaged to complete the plant to identify the documents it wants. At this stage, the parties have not had the opportunity to address the court in detail as to whether this second basis is or would be consistent with a Harman undertaking. Until further consideration is given to this point, it is my view that caution should be exercised in granting any further access to Acciona.
8. Given the variations in the description of documents in the index as well as the need for the plaintiffs to test the contention in the KVI parties' defence that some of the documents sought by them have already been provided to the plaintiffs via Acciona, I accept that it would be appropriate to extend those persons with access to the index to a limited number of non-legal representatives of Acciona. However, at this stage there is no evidence as to the background or roles of the additional persons to whom Acciona wish to access the index or whether they have any continuing role in the completion of the East Rockingham waste to energy project. In my view, an affidavit should be filed by Acciona to explain the role each of these people have in the business so that proper consideration can be given as to what further orders should be made.
9. Taking all of these matters into account as well as the history and context of this matter, at this stage I do not consider that any amendments to the orders made on 23 December 2025 should be made at this stage. Once further evidence is filed setting out the background and roles of each of the three further individuals for whom access is sought by Acciona, I will consider that at that stage what, if any, further amendments should be made to the existing orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[2] Astra Zeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 [10].

[3] DC Payments Pty Ltd v Next Payments Pty Ltd [2016] VSC 315.