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[2019] QSC 29
Supreme Court of Queensland
2019-02-22
Jackson J
Original judgment source is linked above.
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - CONFIDENTIALITY - whether a non-party to the original proceeding could add redactions to preserve additional material - whether material was confidential and commercially sensitive - whether it was in the interests of justice to restrict availability of material to members of the public - where material was held to be confidential
Uniform Civil Procedure Rules 1999 (Qld), r 981.
Anchorage Capital Partners Pty Limited v AC-PA Pty Ltd [2015] FCA 1436; (2015) 331 ALR 512, cited.
AW v Rayney (No 4) [2012] WASCA 117, cited.
Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115, cited.
Civic Video Pty Ltd v Paterson [2013] WASCA 107, cited.
Dovedeen Pty Ltd v GK [2013] QCA 116, cited.
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, cited.
J v L & A Services Pty Ltd (No. 2) [1995] 2 Qd R 10, cited.
National Roads and Motorists' Association v Whitlam [2007] NSWCA 81, cited.
R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227, cited.
Re a Former Officer of the Australian Security Intelligence Organisation [1987] VicRp 70; [1987] VR 875, cited.
Russell v Russell (1976) 134 CLR 495, cited.
Southern Cross Pipelines Australia Pty Ltd v Michael [2002] WASC 171, cited.
Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCAFC 47.
Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2017] QSC 293, cited.
[1] This unusual application is for an order that will in one respect cause the business of the court not to be conducted in open court. Both at common law and now by statute,[1] this court is required to proceed in open court, subject to exceptions, recognising that "[t]he general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law."[2] This is "[a]n essential feature of courts in the Australian judicial system",[3] for the reasons explained by Gibbs J in Russell v Russell:[4]
"It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v Scott [1913] UKHL 2; [1913] A.C. 417, at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (McPherson v McPherson [1936] A.C. 177, at p. 200)."
[2] The principal proceeding in this case was a claim for injunctive relief based on alleged breaches of contract and threatened breaches of contract. After a trial, the proceeding was resolved by a judgment in favour of the defendant.[5] The trial was conducted on affidavits by way of evidence in chief of the witnesses who were called to give evidence. The affidavits were lengthy and exhibited many documents. One of the affidavits was affirmed by Brooke Anderson Miller on 17 August 2017.
[3] As between the parties, a question arose in the proceeding because some of the material contained in the affidavits and the exhibits was confidential and commercially sensitive.
[4] The relevant principles in that respect in relation to the production of documents on disclosure were usefully collected in Civic Video Pty Ltd v Paterson:[6]
"Confidentiality is not ordinarily a sufficient reason to deny inspection by the opposite party as the implied undertaking that the documents be used only for the purpose of the litigation will provide sufficient protection to the party producing them. However, other considerations arise where the documents in question are commercially sensitive and the relevant parties are trade rivals: Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60 [7]-[10]. Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 2] [2010] WASC 217 [55]-[59].
In this context, when it is said that the information is 'commercially sensitive', what is meant is that 'a rival in the market place who obtains access to it may turn the material to the advantage of that rival and to the disadvantage of the party who seeks to keep it secret': Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34, 38.
Where the relevant parties are trade rivals, and the documents in question contain confidential and commercially sensitive information, the court must strike a fair balance between the legitimate concerns of the party discovering the documents and the needs of the other party to the litigation: Mobil Oil, 39-40; Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663 [6].
In relation to the court's duty to strike a fair balance, Hayne JA in Mobil Oil observed:
'Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts. Again it may be accepted that generally a party is entitled to inspect the documents of an opposite party by itself its servants or its agents. But in the present kind of case, is it necessary to destroy the legitimate claim to confidentiality from trade rivals by permitting the principal of that rival to look at the documents? Is it sufficient to permit counsel and solicitors (and nominated experts) to do so? It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality. No more specific rule can be laid down - each case will fall for determination according to its own facts. In particular the nature and the content of the disputed documents is a matter that will usually, if not invariably, be of great importance in forming a conclusion and, if that is so, it will be appropriate for the judge to inspect the documents concerned (39-40).'
Some of the relevant matters in assessing whether a document should attract additional protection beyond the protection of the implied undertaking include the age of the information, the identity of the persons who will inspect the documents, and the reason or reasons why the inspection of particular documents is necessary: Cadbury Pty Ltd v Amcor Ltd (No 2) [7]. More generally, a relevant factor is the degree of commercial sensitivity involved and the extent of any prejudice to the party giving discovery: Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd (No 2) [58].
The striking of a fair balance may need to be revisited as the matter progresses to trial: Cadbury Pty Ltd v Amcor Ltd (No 2) [6]."
[5] Under the rules of court as they operated at the time,[7] affidavits were filed in both hard copy and electronic form. Once filed, an electronic affidavit "is taken for all purposes to be" part of the court file.[8] Accordingly, under Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"), r 981(1), a person may ask the registrar to search for and permit a person to inspect the affidavit as a document in a court file. Subject to any court order restricting access to the file or document, or the file or document being required for the court's use, by r 981(3) the registrar must comply with the request. Under Practice Direction 21 of 2016, which applies to a proceeding placed on the Commercial List, court documents are filed electronically and are available for public search over the internet, unless an order is made otherwise.[9]
[6] The parties proposed a sensible regime to permit the trial to be conducted in public, meaning in open court, using those materials, but so as to limit the extent of their disclosure to non-parties. The orders that were proposed by the parties, and accepted by the court to deal with the question of confidentiality and commercial sensitivity in the principal proceeding, involved two steps:
- (1) first, the defendant was permitted to file affidavits in both hard copy and electronic format, including Ms Miller's affidavit, that were redacted to remove information that was confidential and commercially sensitive. The redacted documents were to be placed on the court file and onto the court website, as documents that are filed in a proceeding placed on a commercial list and are generally available by internet access; and
- (2) second, at the trial, the defendant was permitted to read or tender unredacted versions of the same affidavits, in both hard copy and electronic form, but on the footing that at the conclusion of the proceeding, the unredacted versions would be placed in a sealed envelope and marked not to be opened other than by an order of a judge and placed on the physical file.
[7] To the extent of those orders, the proceeding constituted business of the Court that was not conducted in open court, contrary to of the (Qld). However, the orders were authorised by the provision made in of the Act that, "subject to any Act, the court may, if the public interest or the interests of justice so require, by order limit the extent to which the business of the court is open to the public".
"...the application raises in part the question, not whether the court should close its doors, as Sir John Donaldson M.R. put it in the New Cross Building Society Case, but whether the Court should close its books. The publicity in the administration of justice referred to by Lord Shaw in Scott v Scott [1913] UKHL 2; [1913] AC 417, at p. 476, is not confined to hearings, at all events in Victoria. Under the present Rules of Court, the indexes to all documents filed in the Prothonotary's office, and the documents themselves, are accessible to the public: O. 61, r. 17; cf. rr 23 and 24. ... In New South Wales, no person may inspect documents filed in the Registry except with leave: Supreme Court Rules 1970, Pt. 65, r. 7. If only because of these differing provisions it is impossible to assert that it is axiomatic to the proper administration of justice that court files be available for unrestricted public search. But the Rules presently in force in Victoria confer such a right..."[17]
[16] In my view, there is no question that the power conferred by s 8(2) is also wide enough to authorise an order in the form that is sought by the applicant. As well, in my view, it is unnecessary to further consider whether, at common law, the power to make such an order may have been restricted to an application by one or other of the parties to the proceeding. There is no reason to limit the scope of the operation of the remedial provision of s 8(2) in such a way. Accordingly, it is possible to make an order of the kind sought by the applicant in an appropriate case.
[17] Other cases, admittedly decided under different statutory provisions, reinforce that conclusion. So, in Cantarella Bros Pty Ltd v Du Bois[18] Rares J made orders for redaction and removal from the court file of documents on the electronic court file of the Federal Court, including pleadings, to preserve confidentiality. Sealing orders are sometimes made either during a proceeding, as in National Roads and Motorists' Association v Whitlam[19] or at the end of a proceeding, as in Anchorage Capital Partners Pty Limited v AC-PA Pty Ltd.[20]
[18] National Roads and Motorists Association also involved consideration of the principle of open justice and the position of a non-party who claims the confidentiality and commercial sensitivity, when an order for production of the non-party's documents is sought, as follows:
**"**The present case involves how the Court should deal with information that is confidential, where one of the people entitled to the benefit of the obligation of confidence is not a party to the litigation. It is common enough for confidential documents to be obtained on subpoena from a non-party. The court's practice in dealing with such confidential documents can provide a guide to the sort of orders it should make concerning the confidentiality of the Confidential Exhibits.
Whenever any documents are obtained on subpoena from a non-party, the three steps identified by Moffit P in National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at 381 are involved in obtaining and later using the documents:
'The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.'
When one gets to the second step in this process, Moffit P said, at 383:
'At this point documents are in the control of the court, pursuant to the valid order of the subpoena. As pointed out in Small's case [1938] NSWStRp 29; (1938) 38 S.R. (N.S.W) 564, at p. 574; 55 W.N. 215) at this time the witness may state he objects to their being handed to the parties for inspection. If he states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination. There may be good reason why he may, or indeed should, refuse inspection of irrelevant material of a private nature, concerning a party to the litigation, or, concerning some other person who is neither a party nor the witness. It may well be that the documents are the property of some institution, but relate to private matters concerning some person and the officers of the institution do not take objection on the basis that the responsibility for disclosure rests with the court. The documents are in its control and are used on its responsibility so far as properly required for the purpose of the proceedings.' (emphasis added)
If objection is taken to the documents being inspected, on the ground of confidentiality, and there is a prima facie basis for that objection, it is for the person seeking access to make out a case that access should be granted. In deciding whether to grant access, the Court takes into account both the inherent degree of confidentiality of the documents, and also the importance of the role that they might play in the proceedings.
If legitimate objection is taken to inspection of the documents, on the ground that they are confidential, an expedient frequently adopted is to permit inspection by legal advisors on the basis that the contents of the documents are not to be disclosed by them, and are to be used only for the purpose of the proceedings. That permits the hearing to advance, with the confidentiality impinged on only to the minimum extent necessary to enable the hearing to proceed. If in the course of a hearing a question arises of whether such a document that has been permitted to be inspected by legal advisers on confidential terms should be tendered, or should be used in cross-examination of a witness, the court decides at that stage whether any, and if so what, restrictions are imposed on the manner in which the oral evidence is taken, or the access that is granted to the exhibit."[21]
[19] The more difficult question in the present case is whether the confidentiality relied upon and the potential of risk or damage to Woolworths, if the commercially sensitive information were available to public search, is sufficient to warrant the order that is sought.
[20] One analogous case is Southern Cross Pipelines Australia Pty Ltd v Michael.[22] In that case, Heenan J held that the probability that details of contractual relationships, which otherwise would have been kept confidential, would be revealed that may have economic consequences for the parties did not justify the court from departing from the well tried and prudent rule that judicial proceedings should be conducted in public and the public should have full access for the reasons for decision given by the court.[23]
[21] In my view, decisions of this kind are largely fact driven and depend on the individual circumstances of the case. I have carefully considered whether the circumstances of the present case are sufficient to justify the order that is sought. One factor that assumes some importance is that the parts of the documents to be further redacted are not referred to in the reasons for judgment or findings of fact, because they relate to an issue that it was not necessary to resolve in the final judgment. There remained, however, a real question whether the parts of the document in question were truly confidential in nature and truly commercially sensitive such that it is in the interests of justice to restrict their availability to members of the public.
[22] In the end, after a period of misgivings, I have concluded that they are. However, as I hope the reasons set out above illustrate, it is not to be thought that such an order is justified in every case where a document is confidential and disclosure may possibly have some adverse business effect on a non-party. The point of principle in question was made again last year in Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2)[24] where the Full Court of the Federal Court said:
"In Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 Perram J recently summarised the principles applicable to orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) where commercially sensitive information is sought to be suppressed from public view. At [8]-[9] this was said:
'8. It might be thought that the mere protection of commercial-in-confidence information, which is essentially what Hytera seeks in this case, fits less comfortably within the statutory words 'necessary to prevent prejudice to the proper administration of justice'. But this Court has held in a number of cases that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: see Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 235 per Bowen CJ; Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [23] per Greenwood J; Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [7] per Jacobson J; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 ('Air New Zealand (No 3)') at [35]; Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 ('Origin Energy') at [148] per Katzmann J; ASE16 v Australian Securities and Investments Commission [2016] FCA 321 at [93] per Markovic J.
9. There are cogent reasons for this which have variously been described in those cases, but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court. As I have explained at [6(6)] of these reasons above, the safeguarding of that interest as a primary objective of the administration of justice is a mandatory consideration for the Court. Particularly is that so in cases such as the present, where the Agreement, and its interpretation, may become a central plank in the ultimate resolution of the proceeding, and thus, to the intelligibility of future reasons delivered by the Court.'"[25]
[2] R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227, 235.
[3] AW v Rayney (No 4) [2012] WASCA 117, [29].
[4] (1976) 134 CLR 495, 520
[5] Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2017] QSC 293.
[6] [2013] WASCA 107, [26] - [31].
[7] Uniform Civil Procedure Rules 1999 (Qld), rr 975B - 975E.
[8] Uniform Civil Procedure Rules 1999 (Qld), rr 975E(1).
[9] Practice Direction 21 of 2016, [6].
[10] The amendment was made by No. 66 of 1999, s 46.
[13] [2013] QCA 116, [36] and [46].
[14] [2011] HCA 4; (2011) 243 CLR 506, 530-535 [20]-[27].
[15] [1995] 2 Qd R 10, 43.
[17] [1987] VicRp 70; [1987] VR 875, 878.
[19] For example, [2007] NSWCA 81, [112].
[20] [2015] FCA 1436; (2015) 331 ALR 512, 523 [46]-[48].
[21] [2007] NSWCA 81, [117]-[121].
[23] [2002] WASC 171, [19].
[25] [2018] FCAFC 47, [4].
Velocity Frequent Flyer Pty Ltd
BP Australia Pty Ltd [2019] QSC 29
(2015) 331 ALR 512
(2011) 243 CLR 506
(1976) 134 CLR 495
(1978) 1 NSWLR 372
(1980) 29 ALR 228
[8] Consistently with questions which were raised by me during the hearing of the trial, the parties agreed to reduce the scope of the relevant redactions in the affidavits and documents tendered, and to provide a final set of redacted versions at the conclusion of the proceeding. The present application, however, seeks to add to the scope of the redactions that were agreed between the parties, under the orders previously mentioned.
[9] It is at this point that the applicant, Woolworths Group Ltd ("Woolworths"), enters the lists. It was not a party to the proceeding. However, it or a related corporation, was a party to a suite of confidential contracts made with the defendant, or its related corporation, that are referred to in the reasons for judgment. In substance, Woolworths seeks to add to the redactions so as to preserve additional material from appearing on the public court file, on the ground that it is confidential and commercially sensitive.
[10] The first document over which further redaction is sought is a copy of an email from Robert Mete to Andy Holmes and others sent on 29 July 2016 (and the chain of emails to which it was attached) concerning the defendant's confidential non-binding indicative offer for the acquisition of "Woolworths Fuel" and entry into a commercial alliance between the defendant and Woolworths that were being discussed (Exhibit BAM-7 to Ms Miller's affidavit). The second document is an information pack provided by Woolworths on the business and operation of the company and its related bodies corporate for the purpose of assisting the defendant in deciding whether to proceed with a further investigation of the fuel retailing assets of Woolworths (Exhibit BAM-4 to Ms Miller's affidavit).
[11] A solicitor for the applicant swears, on information and belief from identified employees of Woolworths, that the redactions sought are to protect confidential and commercially sensitive information that is not publically available other than to Woolworths or the parties who received exhibit BAM-4 or exhibit BAM-7 and which reveals sensitive aspects of the negotiation of the transactional documents, including the value of the offer to be put by the defendant during the period of the negotiation and the terms which Woolworths would have been prepared to accept as part of that commercial negotiation. The information included the terms of arrangements with third parties which are not otherwise publically disclosed by Woolworths.
[12] The application is unusual because it is made by a non-party for the redaction of evidence deployed in a proceeding between other parties and because Woolworths seeks redaction to an extent beyond that which was agreed to be necessary as between the parties. However, the parties have no opposition to the increase of the redaction that is sought. And it must be acknowledged that it is Woolworths' business affairs that are the subject of any commercial sensitivity that would justify the redaction of parts of BAM-4 or BAM-7, not the affairs of either the plaintiff or the defendant, except to the extent that the defendant was involved in the negotiations and contracts with Woolworths that resulted.
[13] Prior to the enactment in 1999 of s 128(4) of the Supreme Court of Queensland Act 1991 (Qld),[10] and its replacement in 2011 by s 8 of the Supreme Court of Queensland Act 1991 (Qld),[11] a number of cases in different common law jurisdictions closely considered the power of a superior court, such as the Supreme Court of Queensland, to conduct business other than in open court. In this State and for the purpose of these reasons, the appropriate starting point for that power is in the reasons for judgment in 1995 of the Court of Appeal in J v L & A Services Pty Ltd (No. 2),[12] which were referred to with approval in Dovedeen Pty Ltd v GK,[13] and the reasons for judgment of French CJ in 2011 in Hogan v Hinch.[14] However, whatever the limits on the power at common law, it is clear now that this court has a general discretionary statutory power, if the public interest or the interests of justice require, to limit the extent to which the business of the court is open to the public, under s 8(2) Supreme Court of Queensland Act 1991 (Qld).
[14] On the proper construction of that sub-section, the business of the court that is open to the public, that may be limited by order, is not confined to that part of the business that is constituted by a hearing in open court, but properly includes the part of the court's business encompassed by the documents published by the court in the form of orders and reasons for judgment and the documents that are received onto and kept on the court's file that would otherwise be open for public inspection.
[15] That the power to do so extends to the court "closing its books, i.e., merely restricting scrutiny of court papers" was recognised in respect of the common law power in J v L & A Service Pty Ltd (No. 2).[15] See also the specific consideration of the point at common law in Re a Former Officer of the Australian Security Intelligence Organisation.[16] In that case, Brooking J said: