Sportsbet Pty Ltd v Harness Racing Victoria

REASONS FOR RULING 1 The parties seek further interlocutory orders to address issues between them relating to the further conduct of this matter in preparation for trial. These reasons explain briefly the basis for the orders made on those issues. 2 They concern: (1) the applicant's request for unredacted copies of discovered documents, subject to any claims that such documents contain material privileged from production on the ground of legal professional privilege; (2) the applicant's request for further discovery from the first respondent; and (3) the first respondent's claim for orders protecting the confidentiality of certain of its discovered documents. 3 Issues as to the confidentiality of documents of the intervenor, and as to the production of certain documents discovered by the second respondent in an unredacted form, were resolved and orders were made on 16 November 2010 to give effect to the consensus of those parties on those issues.

cONFIDENTIALITY 4 The relevant legal principles are set out in the reasons for judgment of Gordon J in Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663 at [6] and by Perram J in Betfair Pty Limitedf v Racing New South Wales (No 5) [2009] FCA 1011 at [9] and [11]. 5 In this matter, the real dispute concerning the documents over which confidentiality is claimed so that a limited access order should be made, is whether the need for confidentiality has been justified. That is a matter for the Court upon the whole of the material. The first respondent does not contend that, by reason of the asserted confidentiality, the discovered documents should not be inspected. It contends that inspection of the documents in issue should be confined to the solicitors and counsel for the applicant and any expert witnesses retained for the purposes of writing reports for use in the proceeding. Nevertheless, to justify such a restriction, the first respondent must satisfy the Court that it is appropriate. For that purpose, having regard to what Perram J referred to as "the normal notions of open justice", the mere assertion of confidentiality will not be sufficient to satisfy the Court that such an order should be made. 6 The claim to a confidentiality order is contentious only in respect of the documents listed in Schedule A to the affidavit of Kristy Pattison sworn on 9 November 2010. The claim to confidentiality in respect of the documents listed in Schedule B to that affidavit is now acknowledged as appropriate by the applicant. In all, the documents referred to in those schedules are voluminous, extending over some 10 lever arch folders. 7 The material before the Court satisfies me that, at least at this point, a fair balance between the interests of the applicant in securing inspection of those commercially sensitive documents and the interests of the first respondent in preserving the secrecy of what appears to me to be commercially sensitive material is best struck by making a confidentiality order in the terms proposed by the first respondent. Those documents include the detailed terms of a Joint Venture Agreement and related agreements to which VicRacing Pty Ltd is a party, and it appears that, by virtue of the role of the first respondent, it has access to the Joint Venture information. The Joint Venture is a competitor of the applicant in the provision of wagering services. I am satisfied that the first respondent is acting appropriately in seeking the confidentiality orders by its interest in the Joint Venture Agreement and the related Product Supply Agreement through VicRacing Pty Ltd and Racing Products Victoria Pty Ltd. The documents include financial and commercial information about the operations and payments made by Tabcorp Holdings Limited (Tabcorp) under those agreements, its detailed financial position and the financial performance of both the Joint Venture and Tabcorp. It contains details of the future financial and commercial planning of both the Joint Venture and Tabcorp, including financial modelling with projected returns. It shows the monies received by the first respondent from the Joint Venture. 8 I have had regard to the fact that Tabcorp, whose information is contained in that material extensively, has not itself claimed that all of it is confidential. Issues as between the applicant and Tabcorp have been resolved consensually on confidentiality. I have also considered the "blanket" nature of the claims made by the first respondent. I have taken into account the fact that its perspective, as distinct from that of Tabcorp, may make it more cautious about issues of confidentiality. 9 In the balancing exercise, having regard to the fact that the applicant will be entitled to see the contentious material (but confined to particular persons), I do not think that its preparation for the trial will be impaired so the order sought will not produce unfairness in the litigation. If, after inspection, it emerges that it is necessary for the applicant to secure a fair trial, that the applicant through a designated officer or officers needs to see the material, or some of it, there will be liberty to apply to enable that to be done. 10 Overall, in respect of that material being documents A1 to A16 and A22 (and the documents numbered A17 to A21 about which there is no issue) in Schedule A, I propose to make the order sought by the first respondent. In my view, it is shown to be commercially sensitive and potentially of commercial benefit to the applicant as a competitor for the Joint Venture. 11 Documents A23 to A48 of Schedule A are described as minutes of meetings of the Victorian Joint Venture. Under the Joint Venture Agreement, they are confidential. That is not, of itself, sufficient to warrant the Court making the order sought in respect of them. There is additional, but scant, evidence that the minutes "reveal the issues being faced by the Joint Venture and the Joint Venture's strategy and response in dealing with those issues", so that "it would be very damaging to the Joint Venture for its competitor, the Applicant, to have access to" that information. 12 I have had regard to the nature of those documents. Although the evidence is scanty, their character leads me to the view that in some material respects the claim to confidentiality is made out. I do not feel confident that editing those documents would be a safe option. 13 For the same practical reasons as given in respect of the documents A1 to A16 and A22, in my view the better course at present is to give effect to the claim to confidentiality in respect of them.