Homemaker Hub Pty Limited v Strathfield Council

TEXTS CITED: Lexis Nexis, Ritchie's Uniform Civil Procedure NSW (Volume 1, 2005)

APPLICANT Mr C McEwen SC with Mr M Staunton SOLICITORS Gilbert and Tobin LEGAL REPRESENTATIVES: RESPONDENT Mr T Hale SC SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11199 of 2008 Homemaker Hub Pty Ltd v Strathfield Council (No 2)

JUDGMENT 1 Her Honour: This matter is set down for hearing in June 2009. The Registrar made an order on 17 March 2009 that the Applicant serve on the Respondent specified documents subject to the Respondent giving a confidentiality undertaking to the Court. The form of the confidentiality undertaking provides: … 2. I undertake to the Court and to Homemaker Hub Pty Ltd (ACN 112 177 518) (HH) and Direct Factories Outlets Homebush Pty Ltd (ACN 094 951 112) (DFO) that I will not without prior leave of the Court and without first advising Homemaker Hub Pty Ltd: a. disclose the contents of the documents marked confidential and produced by HH and DFO in answer to a request from the Respondent's solicitors, Houston Dearn O'Connor in a letter dated 25 February 2009 attached at Annexure 'A' (Confidential Documents) to any person other than: i. a judge or commissioner of the Land and Environment Court of New South Wales; ii. counsel, solicitors or paralegals who are employed or engaged by, or partners in, Houston Dearn O'Connor in relation to these proceedings who have first given an undertaking to the Court in the same terms to this undertaking; iii. counsel or solicitors on the record for a party to these proceedings who have first given an undertaking to the Court in the same terms to this undertaking; or iv. any other person after that person who has first given an undertaking to the Court in the same terms to this undertaking; b. use the information contained in the Confidential Documents for any purpose other than these proceedings; or c. provide copies of any/or all of the Confidential Documents to a person other than a person referred to in 2(a); 3. I undertake to destroy any and all Confidential Documents (including any copies mad by any party) at the conclusion of these proceedings and confirm in writing to HH and DFO that this has occurred. 4. I reserve the right to apply to the Court to seek orders vacating or varying the terms of this undertaking but will advise HH and DFO in advance of seeking any such orders.

Annexure A refers to pedestrian traffic count data.

2 The data in issue was first referred to in the evidence of the Applicant's traffic expert Mr Tucker. Mr Hallam, the Council's traffic expert, has referred to the data in his evidence. The Applicant does not wish that data sent to the Roads and Traffic Authority of NSW (the RTA) and has asked that those portions of the report with details of the data be removed from the document before it is sent. This is opposed by the Council because it does not allow the substance of the material to be seen by the RTA. The RTA officers involved are not prepared to enter into the confidentiality undertaking ordered by the Registrar. Council's submissions 3 The Council wishes to be released from the undertaking generally in relation to the commercial in confidence material because it is impeding the preparation of its case. Any person who needs to be aware of the information has to enter into the undertaking and that limits severely the number of persons at the Council who have been able to access the data. I am told from the bar table that two people have entered into the undertaking but not the general manager or any of the elected councillors.

4 Alternatively, a more limited order is sought that the data be able to be supplied to the RTA via Mr Hallam's report without that report being redacted.

5 The Council disputes that the data is confidential. An affidavit sworn 13 March 2009 of Mr Porz, director of the Applicant, (see below) provides no details of how the data is confidential and can be used in a way adverse to the Applicant's financial interests. The Applicant has waived its confidentiality undertaking given the reference in its own expert reports to the pedestrian traffic count data, by analogy with principles applying to legal professional privilege as found in Attorney-General for the Northern Territory v Maurice and Ors (1986) 161 CLR 475.

Applicant's submissions 6 The affidavit of Mr Porz was relied on by the Applicant. It identifies in broad terms that the pedestrian traffic count data is commercial in confidence. Its release in the public domain will cause the release of commercially sensitive material which can be used by the Applicant's competitors in various ways. The data identifies when people are recorded at the centre in real time so that peak patronage times are identified.

7 The Court has made such orders in appropriate other cases, see Terry Street Pty Limited v Leichhardt Municipal Council (2006) 145 LGERA 137.

8 It is accepted that there is a degree of inconvenience in the preparation of the hearing resulting from the need to provide the confidentiality undertaking but is nevertheless necessary in the circumstances. The extent to which elected councillors need to be involved given that the decision is now with the Court is not clear. To the extent Council officers need to be briefed in order to give instructions then they can enter into the undertaking.

Finding 9 The usual obligation of the parties and their legal representatives and anyone briefed by them such as consultants, is that documents and information contained in documents provided in the course of legal proceedings will not be used for any purpose other than the litigation.

10 I have been referred to Terry Street by the Applicant as one example of a case where a commercial in confidence undertaking was required in this Court. The context was whether subpoenaed documents should be produced subject to the provision of an undertaking in similar terms to that made by the Registrar in this matter. Jagot J refers to a number of authorities which have discussed the appropriate (I note limited) circumstances in which such undertakings are necessary, for example Church of Scientology of California v Department of Health and Social Security [1979] 1 WLR 723 which refers to the need to prevent abuse of process through the misuse of material. That discussion in the context of the subpoena of documents is not the same situation as the one before me as issues of relevance and forensic purpose need to be assessed. Here the Applicant wishes to rely on data which its experts or employees have collected and which it claims is commercial in confidence. The data is an important part of the information on which its traffic expert has provided his assumptions and analysis of the parking and other requirements of the proposed development. The Applicant does not however want that data made widely available even within the context of this litigation, hence the confidentiality undertaking which the Registrar imposed. I consider the broad terms of that undertaking have been impeding the ability of the Council to provide the data as it sees fit to the RTA and its own officers.

11 The material is seems to me falls more clearly into the category Jagot J discusses at [26] of Terry Street concerning a claim for "commercial in confidence" over material supplied about a proposed rezoning to a council. Her Honour stated that where there is a potential exercise by the council of the public function of rezoning land, an applicant for a prospective rezoning may lodge with a council documents relating solely to the potential exercise of the Council's power on a confidential basis. At [28] her Honour refers to the important countervailing consideration which I also consider highly pertinent, that it is in the interests of justice that proceedings be conducted in public (Scott v Scott [1913] AC 417). Here the Court is essentially undertaking the public function of determining whether development consent ought be granted.

12 Also, as referred to in Ritchie's Uniform Civil Procedure NSW (Volume 1, 2005) at [21.5.47] (Ritchie's UCP), there is the inherent risk of inadvertent disclosure which places those who have given the undertaking at risk of being in breach. I can see that this could be difficult for council officers seeking to obtain appropriate advice within the council about the matters in issue. For example, the Council's general manager has not entered into the undertaking so that the data cannot be disclosed to him. In the only other case referred to by the Applicant's counsel of Milne v Minister for Planning [2006] NSWLEC 745 Jagot J refused to require such an undertaking. There has not been much time for further research given this matter is dealt with in the duty judge list. No other cases have been found after preliminary searches which is suggestive that these orders are not made very often, or are not sought very often in this Court.

13 Orders requiring more than the usual implied undertaking ought not be made lightly because of, inter alia, the general desirability of parties being fully informed of the basis on which the proceedings are determined (see Ritchie's UCP at [21.5.47]). This is also reflected in the statement in Church of Scientology of California per Stephenson LJ that only a small core of cases would justify such orders being made, also applied by Jagot J in Terry Street at [28]. The decision in Casey v 90 East (Asia Pacific) Pty Ltd [2001] ACTSC 123 also reflects such a view at [9].

14 The affidavit of Mr Porz identifies only in very general terms the ways in which the information is commercially sensitive and it is not self-evident that the concerns he raises will come to pass if the data is somehow more widely disseminated. I note that Westfield is not a party in the proceedings, it being the commercial competitor named in the affidavit. Balancing what are essentially competing interests here, I consider the current version of the confidentiality undertaking is too onerous and will have to be reduced in scope if it is be maintained at all. Order 2(a) prevents discussion of the material in a way which does inhibit unnecessarily the preparation of this matter for hearing and should be removed. Order 2(b) is the usual implied obligation of any person engaging in litigation and is unnecessary. A variation of orders 2(c) and 3 would be appropriate to ensure that the making of copies of the sensitive material are minimised and do not continue to exist beyond the proceedings. I will discuss the terms of an amended order for confidentiality with the parties to see if a feasible outcome can be achieved.

15 In relation to showing the data to the RTA, proper case preparation requires that the data be shown to the relevant officer(s) of that body, which the Applicant accepts. The officers cannot be compelled to enter into the confidentiality undertaking and it is about to be amended in any event. The Applicant handed up a draft letter which suggested a way forward whereby both traffic experts attend the RTA to discuss the data. Mr Hallam's report, with appropriate confidentiality undertakings at the front of it, can be provided to the RTA and returned by them when completed. Any copy taken of his report would have to include some form of confidentiality undertaking at the front of the report. That appears to be an appropriate way of dealing with the information. 16 It is accepted by the Applicant that a separate ruling will have to be sought at the hearing of the matter by the commissioner hearing it concerning the conduct of the hearing if confidentiality to the extent sought by the Applicant is to be maintained. That application will be made at the hearing and is a separate matter from the issue before me according to the Applicant. If no such order is made the evidence will be dealt with in the usual course. For completeness I note that waiver of commercial in confidence information does not arise by analogy with principles concerning legal professional privilege (see par 5).

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