PRACTICE AND PROCEDURE - E-trial - Public access to court book and documents on monitors in courtroom - Confidentiality - Whether necessary for the administration of justice that public access to the documents be restricted during the course of the trial - Principles of transparency, open justice and facilitating the fair reporting of proceedings considered - Confidentiality regime for documents admitted into evidence referred to the trial judge - Confidentiality of discovered documents not yet tendered into evidence to be maintained - _Hogan v Australian Crime Commission_ - [2017] VSC 19 - VSC 2016 case summary

PRACTICE AND PROCEDURE - E-trial - Public access to court book and documents on monitors in courtroom - Confidentiality - Whether necessary for the administration of justice that public access to the documents be restricted during the course of the trial - Principles of transparency, open justice and facilitating the fair reporting of proceedings considered - Confidentiality regime for documents admitted into evidence referred to the trial judge - Confidentiality of discovered documents not yet tendered into evidence to be maintained - _Hogan v Australian Crime Commission_ - [2017] VSC 19 - VSC 2016 case summary — Zoe

[61]

20A By issuing the Apache Force Majeure Notice, by failing to withdraw the whole of the Apache Force Majeure Notice and in sending the 22 December 2010 letter (together the 'Apache Northwest Conduct'), Apache Northwest conveyed the following unqualified representations ('Representations'):

(a) Apache Northwest, Tap and Kufpec had no obligation to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(b) that the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA constituted an act of force majeure; and

(c) the Apache Force Majeure Notice was valid.

Particulars of (a) to (c)

(i) The Representations are express and implied.

(ii) To the extent they are express, they are in writing and contained in the Apache Force Majeure Notice and the 22 December 2010 letter.

(iii) To the extent the Representations are implied, they are to be implied from the GSA, the Apache Force Majeure Notice, the failure of Apache Northwest to withdraw the whole of the Apache Force Majeure Notice and the 22 December 2010 letter.

(iv) Further particulars may be provided prior to trial.

20B In and from at least July 2011, Apache Energy conducted meetings and discussions with Stage 2 Bidders on behalf of Apache Northwest and Apache Corp in relation to a potential settlement of the GSA proceeding and entry into a new gas sale agreement, in which Apache Energy:

(a) offered (on behalf of Apache Northwest and Apache Corp) to compromise the GSA proceeding on terms that a new gas sale agreement be entered into with Apache Energy for gas at USD $2/GJ until July 2015, USD $5/GJ for the next five years to July 2020, gas capped at 87TJ/day and no gas thereafter;

(b) asserted that the GSA proceeding would be resolved in favour of Apache Corp and Apache Northwest, resulting in the effective termination of the GSA; and

(c) did not qualify, withdraw or resile from the Apache Northwest Conduct or the representations,

(together, the 'Apache Energy Conduct').

Particulars

(i) The meetings and discussions occurred in around July 2011 between representatives of Apache Energy (on behalf of Apache Northwest and Apache Corp) and representatives of the Stage 2 Bidders (except for Apache Energy). At various of those meetings, Apache Energy offered to compromise the GSA proceeding on terms that a new gas sale agreement be entered into with Apache Energy for gas at USD $2/GJ until July 2015, USD $5/GJ for the next five years to July 2020, gas capped at 87TJ/day and no gas thereafter [SAL.001.008.3866; ANZ.603.105.3874], an offer that was 'so un-commercial' that it effectively prevented other bidders from making binding, unconditional bids for the Shares (CFLA.001.001.0936]. At no stage during any of those meetings did Apache Energy qualify, withdraw or resile from the Conduct or the Representations. Instead, Apache Energy adopted the Conduct and the Representations to further its own purposes and those of the Apache group of companies.

(ii) In a meeting with representatives of Orascom in around July or August 2011, a representative of Apache Energy said words to the effect that its legal dispute with YPFPL would be resolved in Apache's favour, resulting in the effective termination of the GSA [SAL.010.004.1920].

(iii) Discussions between Sinofert and Apache Energy in around July were referred to in Flagstaff Partners document dated 21 July 2011 entitled 'Project O - Second Round Offer Clarifications Discussion with Sinofert' which states that 'The uncertainty regarding the GSA was too great a risk for Sinofert to accept and without resolution of this dispute, they would be unable to contemplate providing a final bid for this business... recent discussions with Apache indicate that Apache were proposing a settlement that would adversely affect the value of the business for ANZ/PPB such that the value implied by Sinofert's bid on this basis would be a fraction of what was required to be recovered (i.e. London offer)' [SAL.010.004.1696].

20C By engaging in the Apache Energy Conduct, Apache Energy conveyed the Representations.

Particulars

Pankaj repeats the particulars to paragraph 20B.

20D Each of:

(a) the Apache Northwest Conduct;

(b) the Apache Energy Conduct; and

(c) the Representations,

was misleading or deceptive or likely to mislead or deceive in that they were false, inaccurate, incorrect as:

(d) Apache Northwest, Tap and Kufpec were obliged to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(e) the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA did not constitute an act of force majeure; and

(f) the Apache Force Majeure Notice was invalid.

20E Further or alternatively, by reason of the matters set out in paragraphs 20A to 20C above, each of Apache Northwest and Apache Energy represented that it had a reasonable basis for making the Representations ('Basis Representation').

20F At the time of making the Representations and the Basis Representation, each of Apache Northwest and Apache Energy was or ought to have been aware:

(a) of the express terms of the GSA, which had the features pleaded in paragraph 10O(i) above;

(b) of the terms that are usually included in a field depletion contract (ie, a contract only for the supply of such gas as remained in or could be extracted from a specific field), including the terms pleaded in paragraph 10O(i) above, and of the fact that such terms were absent from the GSA;

(c) that Apache Northwest, Tap and Kufpec were obliged to supply gas to YPFPL under the GSA from areas outside the Harriet Field;

(d) that the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA did not constitute an act of force majeure; and

(e) that the Apache Force Majeure Notice was invalid.

Particulars of (a) to (c)

(i) The matters set out in paragraphs (a) and (c) were obvious on the face of the GSA.

(ii) At the time of making the Representations and the Basis Representation, Apache Northwest and Apache Energy were experienced operators in the gas supply industry and must have been familiar with the terms usually present in a field depletion contract.

Particulars of (d) to (e)

(iii) These matters were obvious from the matters set out in paragraphs (a) to (c), and Apache Northwest and Apache Energy must have been aware of them. Further and alternatively, Apache Northwest and Apache Energy's knowledge of these matters is to be inferred from the following matters.

(iv) Before the GSA was executed, Apache Energy (acting on behalf of Apache Corp and Apache Northwest) provided the Letter of Comfort pleaded at paragraph 10H [PPB.012.010.6186], which relevantly stated that 'wholly owned subsidiaries of Apache Energy were participants in a number of other joint ventures in respect of other gas fields [ie, outside the Harriet Field], the uncontracted proven reserves for which totalled 607PJ'. This statement is inconsistent with a belief that:

(A) the GSA required Apache Northwest to supply gas only from the Harriet Field;

(B) the fact there was insufficient gas in the Harriet Field to supply YPFPL as required under the GSA constituted an act of force majeure;

(C) that the Apache Force Majeure Notice was valid.

20G By reason of the matters pleaded in paragraph 20F above, each of Apache Northwest and Apache Energy did not have a reasonable basis for making any of the Representations or the Basis Representation.

20H By reason of the matters pleaded in paragraphs 20F to 20G above, the Basis Representation was misleading or deceptive or likely to mislead or deceive.

[63]

20A In response to paragraph 20A, they:

(a) admit that Apache Northwest:

(i) issued the Apache Force Majeure Notice [SAL.102.001.0249];

(ii) did not withdraw the whole of the Apache Force Majeure Notice; and

(iii) sent the 22 December 2010 Letter [SAL.102.001.0254];

(b) say further that:

(i) any representations conveyed by Apache Northwest were not representations of fact and were no more than contentions of Apache Northwest's opinion as to the extent of its obligations under the GSA in the circumstances described in the Apache Force Majeure Notice;

(ii) the conduct pleaded in paragraph 20A of the third further Amended statement of claim is not actionable conduct under section 52 of the Trade Practices Act 1974 (Cth) ('the TPA'), section 18 of the Australian Consumer Law ('the ACL') or at general law;

(iii) accordingly, the allegations in paragraph 20A fail to disclose a cause of action and are embarrassing; and

(iv) at trial they will rely on the full terms and effect of the Apache Force Majeure Notice and the 22 December 2010 Letter; and

(b) otherwise deny every allegation in paragraph 20A.

20B In response to paragraph 20B, they:

(a) say that:

(i) any conduct engaged in by Apache Energy did not give rise to representations of fact and were no more than contentions of Apache Energy's opinion as to the extent of Apache's Northwest's obligations under the GSA in the circumstances described in the Apache Force Majeure Notice and as to the outcome of the GSA Proceeding [SAL.102.001.0254];

(ii) the conduct pleaded in paragraph 20B of the third further amended statement of claim is not actionable conduct under section 52 of the TPA, section 18 of the ACL or at general law; and

(iii) accordingly, the allegations in paragraph 20B fail to disclose a cause of action and are embarrassing; and

(b) otherwise deny every allegation in paragraph 20B.

20C They deny every allegation in paragraph 20C and they further refer to and repeat paragraphs 20A and 20B above.

20D They deny every allegation in paragraph 20D and they further refer to and repeat paragraphs 20A and 20B above.

20E In response to paragraph 20E, they:

(a) deny that the conduct of Apache Northwest and Apache Energy, in the circumstances pleaded in paragraphs 20A and 20C of the third further amended statement of claim, conveyed any representation, whether express or implied;

(b) say further that:

(i) the conduct pleaded in paragraph 20E of the third further amended statement of claim is not actionable conduct under section 52 of the TPA, section 18 of the ACL or at general law; and

(ii) accordingly, the allegations in paragraph 20E fail to disclose a cause of action and are embarrassing; and

(c) otherwise deny every allegation in paragraph 20E.

20F In response to paragraph 20F, they:

(a) say that the allegations in paragraph 20F are embarrassing because they fail to differentiate between the matters about which it is alleged Apache Northwest and Apache Energy were aware, on one hand, and the matters about which it is alleged Apache Northwest and Apache Energy ought to have been aware, on the other;

(b) say further that the allegations in paragraph 20F fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B and 20E above; and

(c) otherwise deny every allegation in paragraph 20F.

20G In response to paragraph 20G, they:

(a) say that the allegations in paragraph 20G fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B, 20E and 20F above; and

(b) otherwise deny every allegation in paragraph 20G.

20H In response to paragraph 20H, they:

(a) say that the allegations in paragraph 20H fail to disclose a cause of action and are embarrassing and further refer to and repeat paragraphs 20A, 20B, 20E and 20F above; and

(b) otherwise deny every allegation in paragraph 20H.

[98]

My review of the authorities has led me to the conclusion that I am not bound, in considering the second reinstatement application in this case, to apply Guss and Stragan, with the effect that I am limited to considering any "new evidence" which was not available on the hearing of the first reinstatement application. I am of this view for the following reasons.
In the first place, although the second reinstatement application is of a similar kind to an application to set aside a default judgment, it is a different application.
Secondly, the decision of Mandie J in Global Realty constitutes a single judge decision which is contrary to the decisions in Guss and Stragan. In these circumstances, the weight to be attached to the fact that the decisions in Guss and Stragan concern matters of practice and procedure is diminished.
Thirdly, and most importantly, both Brooking and Hayne JJA in Christie clearly stated that they were not purporting to lay down any general rules to be applied in determining whether any interlocutory application constitutes an abuse of process.
Fourthly, the variety of interlocutory applications and of the circumstances pertaining to each individual application dictate, in my view, that it is undesirable that there be a set of rigid rules to be applied to every case where a second interlocutory application is made after the refusal of a first application for the same relief. In this regard, I respectfully adopt the passage from the judgment of Heydon JA in Manning quoted above which was referred to with apparent approval by Maxwell P in Philip Morris.
As a result, it is my view that the correct approach to apply to second or subsequent interlocutory applications is that stated in Manning and Pierson that "the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case." As I have said, this statement was referred to with apparent approval by Maxwell P in Philip Morris. Further, this approach is consistent with the statement of Brooking JA in Christie quoted above in respect of interlocutory applications concerning questions of practice and procedure that:

[108]

40 Of course, given the timing of the application, principles of case management, as articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University,[20] and enshrined in the Civil Procedure Act 2010 (Vic), loom large in the current application. However, those principles also need to be considered in tandem with the justice of the case, and the actual prejudice to the other party and the imposition on Court resources, caused by the bringing of the Lannie application. The Apache parties rely in their written submissions upon a recent decision of the New South Wales Court of Appeal in Liu v The Age Company Limited,[21] in support of their contention that, while the general test to be applied is whether it is in the interests of justice to permit or refuse a second application, where parties have made forensic decisions in the conduct of litigation, it is unlikely to be in the interests of justice to permit them to revisit those tactical decisions. Two points can be made regarding that proposition. First, no application by either Mr or Mrs Oswal for inspection of the Lannie documents has been heard and determined, so that it is arguable that the (albeit flexible) principles applicable to second and subsequent applications do not arise for consideration. The highest the position can be put in that regard is that the Apache parties were not unreasonably lulled into the expectation that, by 18 November 2015, the only outstanding applications concerning the production of documents would be those pressed in the 18 November 2015 letter, such that it would be unfair to the Apache parties to subject them to further applications. The second is that the Court of Appeal was concerned with a very different case. In that case, the judge below acceded to an application to stay a decision she had made in an application in a preliminary discovery application over three years before, such decision having been upheld on successive appeals, in response to a concession made by a media company that it would not rely on a defence of qualified privilege to a claim for defamation if it was not required to produce documents identifying its sources. The Court of Appeal reversed the substantive decision (to order a stay) on various grounds, and also held that the judge below ought not have entertained the application for a stay, as the concession could have been made at the original hearing, and it was not in the interests of justice, or in accordance with the provisions of the New South Wales equivalent of the Civil Procedure Act 2010 (Vic) to do so. However, this was a very different situation to the current case. The preliminary discovery application was described as a 'substantive application' (the first hearing had a duration of ten days), and it was held that the judge below had erred in allowing the re-litigation of matters already heard and determined, and in failing to consider the strain the litigation must have imposed upon the applicant over a number of years. The application of the principles of case management and justice to the previously successful party in that case led to a different result than is warranted in the current case.

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