Supreme Court of WA|2007-04-02|Before: Murray J

1 MURRAY J: This is the defendant's motion to vary the terms of orders made by the Court that have been described as confidentiality orders in relation to documents produced on subpoena by a group of corporate entities which I may describe as the Rio Tinto group. Mr Van Hattem has been given leave to appear for those various companies, Rio Tinto Ltd, Hamersley Iron Pty Ltd and Hamersley Resources Ltd, to oppose the variation of the order which is sought on the motion. The orders were made on 6 March 2007. There was full argument then. It was of course right at the outset of the trial process and matters have moved on in the nearly four weeks since then. There was a further application on 16 March made by the defendant to vary the orders. That application was directed to enabling access to different documents the subject of the confidentiality order, by nominated officers of the defendant, and that application I dismissed.

2 The orders made on 6 March, as I say, were made after full argument. They were carefully considered and submissions ranged, not only across matters of principle, but upon particular aspects of the confidentiality orders to which one or other of the parties took objection. There was indeed at that time some modification of the form of the particular paragraph of an undertaking required by the orders for access to be had to a class of documents the subject of the order, paragraph 10.

3 The position, as I say, is now different from that which applied in relation to the making and the content of the confidentiality orders on 6 March. It is different in this way: the orders on 6 March had two different regimes of confidentiality and access. Those documents which were specified by the Rio Tinto group of companies and their advisers, which were to be referred to in Annexure D to the orders made, were subjected to a more restricted regime of access. In the first place, it applied only to solicitors and counsel and then, in relation to those persons, only upon their signing an undertaking both to the Court and to the Rio Tinto group of companies in relation to the protection of the confidentiality and integrity of those documents and the information they contained.

4 The process of revisiting the orders at this time is said by Mr Van Hattem not to be supportable because, as he puts it, nothing has changed since 6 March. In my opinion what has changed is that these documents, which may be generally described as documents of particular commercial sensitivity in relation to, relevantly, plans and the future dealing with what may be generally described as the Rhodes Ridge interest which is the subject matter or the central subject matter of these proceedings, have now been the subject of consideration by Mr Cole, an expert witness proposed to be called by the plaintiff.

5 The Court has been informed and would understand certainly from the nature of the proceedings as they have been conducted before me thus far, that these documents are in the way of the provision of primary factual material to which the plaintiff proposes, in a separate and confidential section of his report, Mr Cole should make reference in support of the opinions generally expressed in relation to the valuation issues relevant to the case in ways to which I need make no detailed reference in these short observations. All that need be said, in my opinion, is that what now appears is that the documents will be of a particular relevance in relation to the supporting of and formulation of Mr Cole's opinion and they will be matters that will be in evidence in that way, so the plaintiff proposes.

6 It seems to me that, in circumstances of that character where the importance of the use of the material has been adverted to by counsel and where the court can see that there is real relevance, given the nature and description of the documents, to matters which are centrally in issue in the case, the court may not say to a litigant, "You may not lead that evidence." If it is tendered and relevant and admissible, the court will receive it.

7 So I am asked in that context to revisit the question of confidentiality because there is now a crystallised need, as senior defence counsel puts it to me, for counsel at least, and these proceedings only involve access being afforded to counsel, to be able to peruse the documents, accepting the need for a confidentiality undertaking of appropriate substance, so that counsel may be informed and make their judgment about the appropriate testing of the opinion supported by that particular category of information. There is a legitimate forensic purpose for counsel to have access to the documents in that context.

8 In relation to the question of revisiting the need for and the appropriateness of the confidentiality orders in their present form, the Court was referred to the recent decision of the Court of Appeal in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 and in particular to the judgment of Pullin JA in relation to the exercise of the discretionary judgment which the Court must make, but also to the judgment of Steytler P who relied, at 16 [24], in stating what the Court's general approach should be, upon an observation made by Kirby J in the context of an application to reopen a decision refusing special leave to appeal to the High Court in Re Sinanovic's Application [2001] HCA 40; (2001) 180 ALR 448 at 450 where his Honour said:

"As a general rule, interlocutory orders may be varied or set aside in appropriate circumstances where the interests of justice so require."

Again one is returned in considering an application such as this to the interests of justice in the particular context of the case before the Court and the application made.

9 It is necessary, I think, for the Court not to overlook what emerges from the decided cases in relation to what its general approach should be in considering the content, the breadth and the need for confidentiality orders and, specifically in relation to this application, undertakings to preserve confidentiality which may be required before access to confidential material is permitted.

10 Earlier in deciding upon these orders I was referred to and relied upon the decision of Buss JA in Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60. That was a case which concerned an application to vary orders to permit wider access to persons who were described as the joint managing directors of the applicant; in other words, to the persons who were the embodiment of the applicant company. It is sufficient to note that the matter was concerned with commercially sensitive and confidential material and its disclosure to a party who could be described as a trade rival of the entity whose information and documents were under consideration.

11 So far as counsel is concerned, however, note was made in that case of the position which would generally apply in relation to the inspection of documents and their confidentiality. The information contained in them would generally only be permitted to be used solely for the purpose of the litigation in which they had been produced for inspection, not for any collateral purpose. That is an undertaking implied in all of those situations, whether in relation to discovery or the production of documents on subpoena and their inspection, which is of force and real weight.

12 What we are concerned with here of course is a form of undertaking which substantially extends the obligation beyond that general undertaking. The exercise which confronts the Court seems to me to be the same in an application such as this which involves a consideration of the terms upon which counsel may have access to confidential documents, as in a case where a party may seek access to such documents. The general statement of principle which, with respect, I accept, is neatly provided by Buss JA in [20] of his judgment in Cazaly.

13 One starts from this position. Under the general rubric of the need to make the orders of the Court tailored in such a way as to best advance the attainment of justice in the particular case, there is the important principle of justice being administered openly as well as effectively and fairly. As a matter of procedural fairness, the Court will generally lean towards allowing access where access can be seen to be necessary if, so far as counsel are concerned, they are to perform their obligations effectively. The Court will consider in that context the particular nature of the matter which is before it. Counsel drew my attention again this morning to the observation that much may turn upon the particular case and issues and the nature of the information and, as Buss JA put it, "it may be significant whether the litigation involves a dispute as to the facts or is confined to issues of law on facts which are agreed or not disputed". It is, of course, the case here that not only is there dispute in relation to the nature of the opinions offered, but as to the factual ground provided in support of those opinions.

14 I want also to refer, because I think it is also relevant in this context, to a decision relied upon by Buss JA in Cazaly, Mobil Oil Australia Ltd & McDonalds Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34. That also was a case which involved a party wishing to inspect documents in relation to which inspection was resisted on grounds of commercial confidentiality. The question of the undertaking and whether that should be permitted was in issue.

15 In the Victorian Court of Appeal the principal reasons were those of Hayne JA, then of that Court, in which Winneke P and Phillips JA agreed. As I say, many of the observations made seem to me to have the capacity to be of equal assistance when one is concerned with access by counsel as well as by an opposing party. At 38, looking at this question of inspection and access to documents in which there is confidential information of a commercial kind, his Honour said:

"Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. [Or, indeed, I would interpolate, by counsel.] In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise."

16 At 39 - 40, his Honour went on to speak of the need to balance the needs of the parties to the litigation against the legitimate concerns of a trade rival to retain secrecy of commercially sensitive information. His Honour described the need to mould the orders, often distinguishing between the party, its officers, its legal advisers and its experts. His Honour observed that the arrangements made for the giving of undertakings as a condition of access might produce their own difficulties. At 40 he said:

"[o]f 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."

17 It seems to me that those observations provide a very satisfactory guide, with respect, in relation to the content and the requirement of an undertaking which covers the aim of the Court to achieve the appropriate balance which represents the interests of justice in the particular case.

18 Against that general background of observations, I want to now look briefly at the confidentiality orders and do so by noting that we are now concerned with a group of documents which are referred to in annexure D to the orders made. They are documents which are included in that annexure because they are documents which only solicitors and counsel who provide a signed undertaking in the form required by the Court may inspect. They are restricted documents with limited access of a particular kind only. Paragraph 3 of the orders deals with that.

19 These proceedings are concerned with the undertaking which is required as annexure E. It is an open-ended undertaking. It applies upon its being provided until it may be varied, amended or discharged, if at all, by order of the Court. It is not a document which provides for an undertaking in any finite context.

20 Generally its provisions are not challenged by this present motion, but what is in contention is par 10 of the undertaking which counsel for the defence say is not in their judgment, as I understand it for professional reasons as counsel, an undertaking into which they may enter. If it is not changed in the way proposed, it seems clear that the matter will proceed upon the basis that the Court will receive evidence adduced by the plaintiff and may rely upon it in the context of an incapacity of defence counsel to deal effectively with the process of testing that evidence because, absent the undertaking, they will not have seen the material to which the witness will refer.

21 Paragraph 10 is in terms which may be generally described in this way. The individual giving the undertaking undertakes not to advise or represent either the plaintiff or the defendant or any related entity or any third party in relation to any matter other than the proceedings before the court, and there is some expansion of that concept to which I shall refer shortly, which directly or indirectly relates to the Rhodes Ridge joint venture and the Hope Downs joint venture.

22 There follows in each case an expansive description of what is to be taken to fall within those descriptions. It is in that area of the breadth of the undertaking required that the difficulty of counsel is encountered. It seems to me that if I may, by varying the undertaking, enable counsel to be in a position where they say they may sign the undertaking and so have access to the documents and be in a position to acquire knowledge of them for the purpose of performing their functions as counsel in these proceedings, while at the same time providing in relation to what are undoubtedly commercially sensitive and highly confidential documents an appropriate degree of protection to the owner or owners of those documents, the Rio Tinto group of companies to which I have referred, then the orders ought to be tailored so as to provide that appropriate balance.

23 I have examined the modification to the orders which is sought. I agree with counsel for the Rio Tinto group that there is in some respects in what is sought, some capacity for argument as to the precise operation of the undertaking. That may be dealt with, I think, but subject to that it seems to me that what is sought by defence counsel by way of modification of par 10 ought to be permitted, because it will provide a very strict regimen of preservation of confidentiality of the documents and a very considerable degree of protection to the Rio Tinto group of companies, whose information it is, against any adverse or inappropriate use of the confidential information acquired by having access to Annexure D documents.

24 I think it is also appropriate to amend par 10 to incorporate a modification which has already been made, not with the benefit of an amendment to the court order, as I understand it, but by negotiation and agreement between the solicitors and counsel for the plaintiff and those advising the Rio Tinto group of companies. In addition it seems to me, as I have said, that the substance of the modification sought by the defendant, should be made to permit counsel to have access on signing the undertaking. I attach to these reasons the orders made on this application which need to be read with, and where necessary incorporated into, the orders made on 6 March. I discussed them in delivering these reasons ex tempore.

25 It seems to me that, so far as access by defence counsel is concerned, the variations made to it do not weaken in any substantial way the force of the undertaking. The force of the undertaking ought to be substantial because of the confidential nature of the documents and their commercial sensitivity, but it seems to me also that the changes made do strike the appropriate balance between the Court's need to conduct a trial in circumstances which are best calculated to be fair to both parties and to foster the attainment of justice in these proceedings, at the same time preserving the legitimate interests of the Rio Tinto companies. For those reasons, the application is granted in those terms.

The confidentiality orders made on 6 March 2007 are varied -

As to Annexure E, paragraph 10 - by adding after the word "matter", the passage "(other than these proceedings, any appeals or other litigation between the Plaintiff and the Defendant which may arise from these proceedings or otherwise from the partnership between the Plaintiff and the Defendant, in the last mentioned case, provided that Rio Tinto or related entities are not a party thereto)".
Counsel retained by the Defendant in these proceedings may have access to the documents referred to in Annexure D subject to those persons providing a signed confidentiality undertaking in respect of the Confidential Documents in the form set out at Annexure EE.
Annexure EE is worded as for Annexure E, except that for paragraph 10 in Annexure E there shall be substituted -

"10. I will not advise or represent the Plaintiff or any 'related entity' or 'related body corporate' of the Plaintiff, within the meaning given to those terms in the Corporations Act 2001 (Cth), the Defendant or any related entity or related body corporate of the Defendant (as defined above) or any other third party in regard to any matter, (other than these proceedings, any appeals or other litigation between the Plaintiff and the Defendant which may arise from these proceedings or otherwise from the partnership between the Plaintiff and the Defendant, in the last mentioned case, provided that Rio Tinto or related entities are not a party thereto) which involves an issue that relates to the Confidential Information or the subject matter of the Confidential Information contained in the Documents referred to in Annexure D."

WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED (2) [2007] WASC 81 (2 April 2007)

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Judgment (32 paragraphs)

The confidentiality orders made on 6 March 2007 are varied -

Cases Cited (1)