33 In the result, the only evidence before the court in relation to this threshold question comprises indirect assertions of confidentiality made by Mr D'Emilio and based entirely on Mr Maconochie's instructions.
34 Evidence of Mr Maconochie's views and opinions as to documents being "confidential" or of "particular" confidentiality, unsupported by detail as to the explicit basis for putting forward such views and opinions, has the net result of essentially leaving it to the court to infer the necessary basis for the claimed confidentiality.
35 Whilst the interest of the defendants in the plaintiffs' funding arrangements and lines of resource may be accepted as of special interest for obvious reasons in this particular litigation [generally explored in the first judgment delivered on 31 July 2001], the altered environment in which the plaintiffs are required to strictly prove the bases for the claimed confidentiality means that:
(1) there is now a real limit to the extent to which the process of court inference may be taken;
(2) real care requires to be taken to avoid the court being engaged in what may amount to little more than a speculative exercise.
36 The plaintiffs were clearly put on notice of the requirement that the claimed confidentiality be strictly proven. The evidence now advanced in relation to the claimed confidentiality, although identifying and describing the documents said to be confidential, cannot be said to have come up to the mark in terms of detail and, in particular, in terms of explaining the way in which Mr Maconochie used the words "confidential" or "of particular confidentiality". In truth, the court is left without any evidence as to precisely what Mr Maconochie had sought to convey by the use of those terms.
37 Moreover, it seems to me that the plaintiffs should have been able to present far more cogent evidence as to the threshold issue of confidentiality without actually disclosing the content of the subject documents. For example, it would appear that the supposed confidential nature of the funding arrangements could have been better exposed by describing, in a general way, any possible ultimatums or limits which may have been insisted upon by funders, without giving away specific detail as to names, dates or numbers. Alternatively, the effect of particular clauses within the subject funding agreements could in an open fashion have been described in very general terms in order to give the court some idea of what is involved. No such material was presented in that form to the court.
38 Mr Dicker did, however, strongly submit that the plaintiffs were being prevented from putting before the court the very evidence which they had intended to place before the court and which would describe the particular clauses within the funding agreements and other particular matters in relation to the subject documents to point up the confidentiality and the claims in that regard. This was for the simple reason that the reading of the longer affidavit was being opposed. Following Mr Dicker's very close and detailed submissions from the Bar table in relation to the importance of the court scrutinising at least the agreements themselves, the court acceded to those submissions but to a limited extent. Mr Dicker was given a particular time period in which to be able to draw the court's attention to the particular sections of the funding agreements which were said to be of such high confidentiality as to require that those sections be specially dealt with so that there would either be a bifurcated or separate team regime imposed or if not, then those representatives of the defendants' legal team and/or any employees or officers of the defendants would simply never be entitled to inspect those documents. This procedure then took place.
39 The net result of that procedure was that Mr Dicker did take the court to those documents. To my mind, Mr Dicker succeeded in that regard only in persuading the court that insofar as the confidentiality regime the subject of the orders made last week should now be otherwise varied, the otherwise variation should not permit any access to Ms D'Arcy to:
(a) any part of the documents marked for identification A(4)(i)-A(4)(x) as includes any reference to percentages or figures;
(b) insofar as the document marked for identification A(4)(i) is concerned, no such access should be granted to clause 11.1.
(c) Insofar as the document marked for identification A(4)(iii) is concerned, no such access should be granted to clause 14.1 of that document.
40 Subject to the orders outlined below, the defendants nominated counsel who give appropriate undertakings will have access to the parts of the documents to which Ms D'Arcy will not be permitted access.
41 The court declines to take:
(1) the further step of examining any other of the particular documents the subject of the claim for confidentiality; and
(2) the further step of permitting the masked sections of Mr D'Emilio's longer affidavit to be read.
42 I earlier referred to the defendants' submissions that for reasons made explicit in the defendants' written submissions, the court should hold that no confidentiality regime at all should be imposed for the reason that the subject funding arrangements would disclose agreements contrary to public policy or which were illegal for various reasons.
43 During the course of the argument today, the court made plain that a tentative view which was announced to both counsel may be the appropriate regime. The defendants indicated that for pragmatic reasons, but wishing to reserve the question of the claimed illegality to be tested on some future occasion by appropriate application, the defendants were content that the regime which the court had tentatively outlined should be imposed, subject to some minor matters. On that basis only, it is therefore now inappropriate and unnecessary for the court to deal with the so-called illegality arguments.
44 To my mind, the court should now vary the confidentiality regime the subject of orders made last week by an "otherwise order". The appropriate regime justified by the now evidence adduced by the plaintiffs is to make the documents available to nominated legal representatives confined to counsel or solicitors of the defendants; namely to Mr Gleeson SC, Dr Bell, Mr Healy, Mr Lovell and Ms Yelland, as well as to Ms D'Arcy who is an officer and employee of NAB, being a Corporate Counsel and solicitor of the Supreme Court of Victoria. In the case of the counsel and solicitors to whom I have referred, each of those persons will be obliged to undertake to the court that:
(1) until further or other orders, such persons will not use the documents or the information disclosed in the documents otherwise than for the purposes of the security for costs applications.