BETWEEN : SOUTHERN CROSS PIPELINES AUSTRALIA PTY LTD (ACN 084 521 997)

SOUTHERN CROSS PIPELINES (NPL) AUSTRALIA PTY LTD (ACN 085 991 948)

KENNETH COMNINOS MICHAEL WESTERN AUSTRALIAN INDEPENDENT GAS PIPELINES ACCESS REGULATOR

Reasons for decision - Confidentiality orders for affidavits filed in court registry - Reference to parts of affidavits during hearing of application in public chambers - No application for hearing in camera - Reference to affidavit material in reasons for decision - Subsequent application to restrict distribution of reasons for decision or to excise passages

No restriction on publication of reasons for decision

1 EM HEENAN J: This is an application which has been brought by the solicitors for the plaintiffs in this action following the delivery of my decision and the publication of reasons on 12 June last. Those were reasons for decision to refuse an application by WMC Resources Ltd to be joined as a third defendant in the action. They were in a form and contained details which I considered to be necessary. The reasons recounted the contractual relationships between the parties to the action, the issues being raised and in contest in the principal proceedings, and the reasons why WMC Resources Ltd contended it should be a defendant in the action.

2 In doing so, the reasons examined, in a variety of ways and on several occasions, the principal contention advanced on behalf of WMC Resources Ltd that certain provisions in the Gas Transmission Agreement have the result that a decision by the regulator about gas tariffs to be applied to this pipeline under the Gas Pipelines Access (Western Australia) Act 1998 and the regime which it introduced would have a direct effect on the tariffs upon which WMC Resources Ltd is entitled to take gas from the pipeline.

3 The grounds for that contention were the terms of the Gas Transmission Agreement between WMC Resources Ltd and the first plaintiff and another, which are described in those reasons, and the relevance and application of cl 10.2 of the Gas Transmission Agreement which is referred to in the reasons.

4 The present application is brought by the plaintiffs because they contend that the whole of the Gas Transmission Agreement, and in particular cl 10.2, contains confidential information which the first plaintiff, and WMC Resources Ltd for that matter, are obliged to keep confidential under their mutual contractual obligations.

5 This, the plaintiffs contend, raises a factor which should cause the Court to restrain the release or publication of the reasons for the decision only to parties directly concerned in the litigation, with, presumably, obligations of confidentiality so that they would not be further disclosed or used for purposes other than associated with the litigation. They submit that the hearing, insofar as it dealt with the confidential information, should be treated as if it were, or were equivalent to, a hearing in camera or a hearing at which there were restrictions imposed on the publication or disclosure of the details of the confidential information.

6 The basis for that contention arises primarily from the terms of the contractual documents themselves. The Gas Transmission Agreement incorporates the General Conditions applying to the goldfields gas pipeline. They are included in the affidavit material which was before the Court on the application for joinder. Clause 21.1 of those General Conditions is the part of the document which deals with confidential information and it is in these terms:

"21.1 Restriction

Subject to clauses 20.8 and 21.2 and except as required by the GGP Agreement, the law or any stock exchange rules and in any contracts in respect of which either party is a party at the Date of Agreement, neither party shall communicate or comment upon any details contained in the Agreement or disclosed in respect of any application made pursuant to clause 4 to third parties without the prior written consent of the other party."

7 Clause 21.2 deals with permitted disclosure and is in terms which are not material in the circumstances. I pause to emphasise that this contractual restriction expressly acknowledges that it may be obligatory, by reason of the law or because of stock exchange rules, to disclose some or all of the material.

8 Before the joinder application came on for final argument and hearing there were lengthy written submissions and affidavit evidence filed in the Court. Among the materials filed were two affidavits of Kimberley Charles Modra with annexures thereto. Mr Modra, as he swears, was the group manager, projects of WMC Resources Ltd and to his affidavit of 25 March 2002 and the subsequent affidavit which superseded that, his affidavit of 5 April 2002, were annexed a series of contract documents including the General Conditions and the Gas Transmission Agreement.

9 These documents were claimed to be, and there can be no doubt about it, covered by the confidentiality provisions of cl 21.1 of the General Conditions. When the affidavits were filed in the Registry, each affidavit and the annexures were sealed up and orders were later sought controlling the use which could be made of these materials. At an earlier interlocutory hearing on 16 April in this cause I made an order, with the consent of the parties, dealing with these confidential materials. That order, as far as relevant, stated in par 1 and par 2 as follows:

(1) By consent the parties, their solicitors, and any other person shall not disclose the contents of -

(a) the affidavit of Mr Kimberley Charles Modra sworn 5 April 2002 or any further affidavit sworn by him;

(b) the affidavit of Mr David Arthur King sworn 3 April 2002; or

(c) the submissions of any party to this action to the extent they refer to the confidential aspects of the affidavit sworn by Mr Modra as set out in annexure A to this order, confidential material to any other person either directly or indirectly except to -

[and then followed a classification of persons being the direct representatives of the parties, their counsel or solicitors to whom restricted disclosure is permitted]

(2) The confidential material be sealed in an envelope and kept on the court record and not opened unless by order of a judge of this Honourable Court.

10 That was done. The affidavit material, which is quite copious, has been at all times treated in that way. However, at the hearing of the joinder application on 3 May the hearing was conducted in public chambers, the parties were represented by experienced counsel, including senior counsel, and the argument ranged over an entire half day in a manner in which frequent reference was made to the existence of the Gas Transmissions Agreement, cl 10.2, and the reasons why it was contended that this conferred upon WMC Resources Ltd a right to be joined in the proceedings.

11 At no point during the hearing on 3 May was any application made by the present applicants or by WMC Resources Ltd, or by any other to have the proceedings conducted in camera, or for restrictions to be placed on access by the public to the hearing, or to the use of materials which were referred to openly by counsel during the course of the proceedings. After the decision had been given and my reasons have made reference to the existence of cl 10.2 and its effects, the plaintiffs contend that the combination of the confidentiality clauses and the orders of 16 June produce a circumstance where there should be some restraint or limitation ordered upon the use of the reasons which have been published.

12 It has been submitted to me that it is necessary or desirable in this case for the preservation of the confidentiality of the parties that some such limitation should be imposed. A number of submissions have been made, including reliance upon the decision of the House of Lords in the well-known case of the Attorney-General v Leveller Magazine Ltd [1979] AC 440. That was a case concerning proceedings taken against a newspaper for alleged contempt of Court when the newspaper published the identity of a witness in proceedings where justices had indicated, but not ordered, that it was in the interests of national security to keep this witness's name (a senior serving military security officer) confidential. The application failed essentially because the directive of the Court at first instance had not been imperative in ordering the absence of disclosure or publication. While the Leveller case may not be a particularly good example of the doctrine relied upon by the plaintiffs, it is nevertheless quite clear that the plaintiffs seek to rely upon the doctrine that, in certain circumstances, hearings before a court should be in camera or that there should be restraint upon the publication of reasons or, for that matter, some of the evidence or the names of witnesses.

13 That such a power exists cannot be doubted. That it is a flexible power also cannot be doubted. That the circumstances which might call for its application have never been exhaustively defined is also acknowledged. The principles have been examined in a series of cases: Scott v Scott [1913] AC 417, Re Application by a Former Officer of Australian Security Intelligence Organisation [1987] VicRp 70; [1987] VR 875, the relevant passages being found in the judgment of Brooking J, at pages 876 to 877, by the English Court of Appeal in R v Chief Registrar of Friendly Societies ex parte New Cross Building Society (1984) QB 227, and by Malcolm CJ in this Court in the matter of the proposed proceedings by TK and Ors v Australian Red Cross Society (1989) 1 WAR 335.

14 However, all the cases are to the effect that it is only in wholly exceptional circumstances where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount object of the Court, which is to do justice in accordance with law, that the Courts are justified in holding proceedings in camera or preventing publication of material details. The cases are not entirely settled as to the circumstances which justify this course of action.

15 In a Queensland case, J v L and A Services Pty Ltd (No 2) [1995] 2 Qd R 10, a majority of the Queensland Court of Appeal held that information may not be withheld from the public merely to save a party or a witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage, whereas, as the learned author of "Civil Proceedings in Western Australia" at paragraph 34.0.2 of that publication says, in this state under the Blood Bank case matters of that sort justified an anonymity order. I immediately differentiate this case from an application for an anonymity order.

16 It is clear, however, that justice should ordinarily be conducted in public. Courts customarily sit in public. It is extremely rare that applications for limitation on publication or restriction of access to the Courts are made and, when they are made, they are dealt with very guardedly. There can be circumstances which justify such orders. Examples of them are to be found in the cases which I have cited already.

17 In this case it is the economic sensitivity of the information which is relied upon. However, there is no evidence before me to suggest or imply that there would be serious adverse economic consequences to any party if disclosure of the information in the reasons for judgment were to occur. Notice of this application has been given to the other parties, including WMC Resources Ltd, but no other party has thought fit to come and support the submissions made by the plaintiffs.

18 The plaintiffs are in a particular position because, as owners of the pipeline, they are primarily responsible for the performance of the contractual obligations including confidentiality, and I can well understand how they may feel conscientiously constrained to persist with such an application and to take all reasonable measures to preserve the confidentiality but, as I have endeavoured to indicate, even cl 21.1 of the General Conditions does not purport to impose an absolute obligation of confidentiality. It recognises that there may be requirements of law where disclosure is either necessary or inevitable.

19 In litigation of this kind, unless prior application is made to restrain publication, it seems very probable that details of contractual relationships which would otherwise have been confidential will be revealed. The mere fact that that occurs or even that it may have some economic consequences for the parties does not, in my opinion, justify the Court from departing from the well tried and prudent rule that judicial proceedings should be conducted in public and that the public should have full access to the reasons for decision given by the Court. It is for those reasons that I refuse the application to modify or restrict publication of the reasons for decision in this joinder application.