Plaintiffs v Defendants

Plaintiffs v Defendants - [2008] VSC 464 - VSC 2008 case summary — Zoe

[50]

36 In that respect, some assistance may be derived from the principles which are applied where a party resists inspection of relevant documents on the basis that they are confidential. In Mobil Oil Australia Pty Ltd & Anor v Guina Developments Pty Ltd & Anor[25], Hayne JA described the protection provided by the law, where a party is required to produce confidential documents, the inspection of which by trade rivals may have an irreparable adverse consequence to the party so providing production. In the present case, the plaintiff and the sixth defendant are not trade rivals as the parties who were before the Court in Mobil Oil. However, it is clear, on the materials before me, that they are very much "in competition" with each other, in respect of the right of the plaintiff to conduct forestry operations in parts of the Tasmanian wilderness. The first plaintiff seeks to assert and protect its lawful right to carry out those operations in those areas. On the other hand, the sixth defendant, the Wilderness Society, seeks to advance its lawful objectives of protecting the environment, raising public awareness in Australia of environmental issues, and planning, coordinating and supporting public campaigns opposing the harvesting of timber and the sale and export of wood chips. The affidavit of Mr Ogle, affirmed 30 June 2008, demonstrates vividly the competitive and adversarial public stances adopted by the two parties in respect of that issue. In my view, in an appropriate instance, the law would permit either party to withhold from inspection parts of documents discovered by them in this litigation, where it is appropriately established that those parts are both irrelevant to the proceeding and, if disclosed, would reveal to the other party confidential information, such as strategies, financing, organisation and the like, relating to the manner in which either party seeks to assert and maintain its public position in relation to the issue of forestry operations in the Tasmanian wilderness. Although I apprehended that in their written outline, counsel for the plaintiff sought to contend that the type of interest, which I have just described, would not be protected by law, in oral submissions Mr Waller did accept that if the redacted portions of the documents were both irrelevant, and related only to the broader strategies, financing structure, and the like, of the Wilderness Society, the sixth defendant would be entitled to redact those parts of the document, provided that, by so doing, the sixth defendant did not adversely affect or alter the meaning of the remaining portions of the document produced to the plaintiff on inspection. In my view, that position, taken by Mr Waller, is correct.

[52]

38 In the present case, Mr Waller submitted that the claim by the sixth defendant, that redacted parts of discovered documents are either irrelevant and confidential, or alternatively are the subject of legal privilege, should not be accepted at face value. He drew my attention to some of the documents, which have been produced in redacted form. He submitted that an examination of those documents reveals that the claim of the sixth defendant, to be entitled to exclude parts of the documents from inspection, is called into serious doubt, on a proper analysis of the documents produced to date. In particular, he drew my attention to documents 11, 27 and 31. He submitted that the parts of document 11, which have been redacted on the basis of legal professional privilege, appear to be very small in compass. He submitted that, given the context of the excisions, and the short compass of them, it is doubtful whether those parts of that document were brought into existence for the dominant purpose of obtaining legal advice. Similarly, Mr Waller drew my attention to other parts of document 11, and parts of documents 27 and 31, and to the historical context in which those documents came into being, in order to call into question the claim made by Mr Ogle in his affidavit that the excised parts of those documents were both irrelevant and confidential. For example, document 27 is a document entitled "Draft Strategy for Gunns Markets Campaign - Background". Although it bears the date 5 January 2003, it is common ground that the correct date of the document is 5 January 2004. Mr Waller submitted that that document was brought into existence less than two months after the incidents which occurred in the Styx 4A Coupe, which are the subject of this litigation, and one month before the second incident at Triabunna, which was (but no longer is) the subject of this litigation. He submitted that, in that context, it "beggars belief" that the large parts of the document, excised from production for inspection, could relate to irrelevant and confidential matters.

[61]

47 Accordingly, in respect of the documents which have been provided to me for my examination, I am satisfied that the sixth named defendant has not redacted parts of the document which it ought to have disclosed, unredacted, to the plaintiff in this proceeding. In his submissions to me, Mr Waller pointed to the circumstance that, in the course of discovery, the sixth defendant had withdrawn its claim to redact parts of some of the discovered documents, which had previously been produced to the plaintiff in a redacted form. Mr Waller submitted that that process undermines the earlier assertion, by Mr Ogle in his affidavit of documents, that the parts of discovered documents which had previously been redacted (but in respect of which the redaction had been later reversed) were irrelevant and confidential. On the other hand, it might be fairly pointed out that the fact that the sixth defendant reviewed, and changed its position, about some of the redacted parts of the document, reveals that it has, by and large, been conscientious in selecting the parts of the documents which are to be masked on production to the plaintiff. Certainly, my review of those documents which have been provided to me, unredacted, for my examination, has satisfied me that, at least in respect of those documents, the sixth defendant has acted appropriately in selecting the parts of the documents which are irrelevant, and in respect of which a claim for confidentiality might be made. I am satisfied that, in addition, the redaction of those parts of the documents does not unfairly impinge on the intelligibility or meaning of the parts which have been produced, unredacted, to the plaintiff. The process thus undertaken by the sixth defendant reinforces the claim by Mr Ogle, in his affidavit, that the parts redacted are irrelevant and confidential. Based on that analysis, and on the affidavit of Mr Ogle, I consider that the sixth defendant has thus discharged the onus on it, that it has appropriately redacted the parts of the documents which have been produced to the plaintiff on discovery. Accordingly, I do not consider that the plaintiff should succeed on that part of the summons, which was before Master Evans, and by which it sought production to it of the documents, discovered by the sixth defendant, in an unredacted form.

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties

Cases Cited (6)