A Haros & Sons Earthmoving Pty Ltd v Dennis Chung, George Vanco, BBS Pharmaceuticals Pty Ltd & Lomandra Nominees Pty Ltd - [2021] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
A HAROS & SONS EARTHMOVING PTY LTD v DENNIS CHUNG, GEORGE VANCO, BBS PHARMACEUTICALS PTY LTD & LOMANDRA NOMINEES PTY LTD
[2021] SADC 145
Reasons for Decision of his Honour Judge O'Sullivan
14 December 2021
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
As from in or about September 2019, the applicant carried out earthworks and civil works for the third respondent on land owned by the fourth respondent. The applicant rendered two invoices and asserts it made a number of subsequent progress claims. The first invoice was paid, however the second invoice and, the applicant alleges, the subsequent progress claims were not paid. The applicant registered a lien over the land in the sum of $846,343.30. The respondents apply to have the lien cancelled on the basis that the claim is one in restitution. The respondents also seek orders as to confidentiality based on a confidentiality agreement.
Held:
1. The respondents' application for the registration of the lien to be cancelled is dismissed.
2. The respondents' claim for confidentiality orders based on the confidentiality agreement made is dismissed.
3. In the inherent jurisdiction of the court, orders made requiring the applicant to file an amended statement of claim and for restricted access to a previously filed Statement of Claim and to an affidavit filed by the second respondent.
Workers' Liens Act 1893 (SA), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] 137 SASR 117, at [56]-[60]; Spencer v Commonwealth of Australia [2010] 241 CLR 118, [24]-[26]; Cubelic and Sons Pty Ltd v Civil Works Group (SA) Pty Ltd & Ors [2008] SADC 41; Ginos & Associates Ltd v Accordent Pty Ltd [1998] SASC 7023 at [20]-[21], considered.

A HAROS & SONS EARTHMOVING PTY LTD v DENNIS CHUNG, GEORGE VANCO, BBS PHARMACEUTICALS PTY LTD & LOMANDRA NOMINEES PTY LTD
[2021] SADC 145
Introduction

This is the respondents' interlocutory application filed 19 October 2021[1] in which the respondents seek orders:
1.That the proceedings be dismissed insofar as they relate to the enforcement of registration of lien number 13553251 (the "Lien"), registered over two certificates of title;
2.Registration of lien number 13553251 be cancelled;
3.The balance of the applicant's claim be struck out; and
4.The Statement of Claim[2] (and I infer any revised version) be sealed and marked "not to be opened without further order" and that the affidavit of the second respondent, George Vanco sworn 15 October 2021, filed 19 October 2021[3] be sealed and marked "not to be opened without further order".
[1]    FDN3
[2]    FDN1
[3]    FDN5
Documents relied upon
The respondents read and rely upon the following affidavit:
1.The affidavit of George Vanco sworn 15 October 2021, filed 19 October 2021 ("First Vanco Affidavit");[4]
2.The affidavit of George Vanco sworn and filed 5 November 2021 ("Second Vanco Affidavit");[5]
3.The affidavit of Vasilis Will Alexander Vanco sworn and filed 27 October 2021[6] ("Vasilis Affidavit");
4.The affidavit of Dennis Chung sworn and filed 5 November 2021[7] ("Chung Affidavit");
5.The affidavit of Steven Spilios Zogopoulos sworn and filed 5 November 2021[8] ("Zogopoulos Affidavit").
[4]    Ibid
[5]    FDN11
[6]    FDN8
[7]    FDN10
[8]    FDN12
The respondents also rely on their written outline of submissions.
The applicants rely on the affidavit of Pantelis Haros sworn and filed 3 December 2021[9] ("Haros Affidavit").
[9] FDN15
Issues
There are three issues.
The first issue is whether the court should order summary judgment dismissing the claim insofar as the proceedings seek enforcement of the Lien under the Worker's Liens Act 1893 ("the Act") is concerned.
The second issue is whether pursuant to s 32 of the Act, the Court exercises its discretion to cancel the registration of the Lien or alternatively modify its effect. The respondents press for cancellation and submit that if summary judgment is ordered dismissing the claim insofar as the action to enforce the Lien under the Act is concerned, it follows that the Lien should be cancelled.
The third issue is what the respondents described as a procedural issue. It is alleged that the Statement of Claim includes allegations which are unnecessary to advance the applicant's claim and which comprise commercially sensitive material and on that basis as well as alleged breaches of a confidentiality agreement, they seek orders as to confidentiality.
Background
The applicant, ("Haros and Sons") is a civil works contractor and has as is its director, Mr Pantelis Haros ("Mr Haros").
The first respondent ("Mr Chung") is the general manager of operations and a shareholder of the third respondent, BBS Pharmaceuticals Pty Ltd ("BBS").
The second respondent ("Mr Vanco") is the chairman and managing director of BBS and a director of the fourth respondent Lomandra Nominees Pty Ltd ("Lomandra").
The third respondent, BBS, is a company which from in or about September 2019 commenced the development of a horticultural facility on land near Tailem Bend. The planned horticultural facility included a number of glasshouses.
The fourth respondent, Lomandra is the owner of the land upon which BBS is developing the horticultural facility ("Site"). Lomandra is a fully owned subsidiary of BBS.
In or about September 2019, Mr Haros had discussions with representatives of BBS in relation to Haros carrying out earthworks and other civil works ("Works") for BBS on land owned by Lomandra. Mr Haros engaged an engineer, Mr Hatzi, of Henley Civil whom he knew had expertise in planning and calculating rates, to assist him in estimating the costs of carrying out the Works.[10]
[10] Haros Affidavit [3]
On 23 September 2019, Mr Hatzi sent an email to the then Chief Executive Officer of BBS, Mr John Dagas ("Mr Dagas") attaching a Schedule of Rates ("Schedule of Rates")[11] for earthworks and other civil works to be carried out on the Site by Haros and Sons.
[11] First Vanco Affidavit; Exhibit GV-2, Haros Affidavit; Exhibit PH-1
During the course of argument, there was an issue as to whether the Schedule of Rates to which Mr Haros refers to in his affidavit[12] and to which Mr Vanco also refers in the First Vanco Affidavit[13] was the initial Schedule of Rates for the whole of the Works or an amended Schedule of Rates to reflect a lesser quantity of work.
[12] Haros Affidavit [10]; Exhibit PH-1
[13] First Vanco Affidavit; Exhibit GV-2
The Schedule of Rates sent by Mr Hatzi to Mr Dagas was accompanied by an email dated Monday, 23 September 2019. The email refers to the Schedule of Rates being brought and shown to Mr Dagas "at the meeting".
It is apparent from exhibit PH-2 to the Haros Affidavit, which is a letter from Mr Chung to Mr Haros dated 25 June 2020, that the meeting to which Mr Hatzi refers is a meeting held on 23 September 2019. The email continues that Mr Hatzi has modified (the Schedule of Rates) to remove production times for plant and labour but had left actual plant and labour rates for Mr Dagas' consideration. The Schedule of Rates for the work identified in the Schedule of Rates totalled $1,019,403 (excluding GST).
The format of exhibit GV-2 is different to that in exhibit PH-1, however the substance is the same. It is apparent from item 1 in the Schedule of Rates that the entire Site comprises an area of 86,100 sq m but that work was to be done on both the whole of the Site and specific parts of the Site, in particular, item 11 which related to preparation of the pad for one glasshouse and was referred to as "Stage 1".
Mr Haros deposes that initially there was a Schedule of Rates for the whole of the anticipated Works including an internal access track which was 10m wide and constructed of 150mm deep rubble around the proposed premier (sic perimeter) fence and a 10m x 150m (sic 150mm) rubble pad for a glasshouse base preparation and other work. He deposes it was initially given to BBS and its officers but was not sent.[14]
[14] Haros Affidavit [10.1]
Mr Haros deposes further that the scope of the Works kept changing as a result of which he had Mr Hatzi look at the Schedule of Rates for one glasshouse base preparation which he deposes is exhibit PH-1. Mr Haros deposes that he gave a copy of PH-1 to Mr Chung and Mr Dagas at a meeting once he knew preparation for one glasshouse pad was to be carried out. He deposes further that PH-1 identifies the total areas and requirements but reduces the costs of the actual works from the whole of the Site to what was required at the time.[15]
[15] Ibid [10.3]-[10.8]
That is consistent with the email from Mr Hatzi to Mr Dagas sent 23 September 2019 in which Mr Hatzi says he removed production times for plant and labour but has left actual plant and labour rates.[16]
[16] First Vanco Affidavit; Exhibit GV-2
In contrast, Mr Vanco deposes that BBS and Haros and Sons proceeded on the basis that the Schedule of Rates set out an estimate of the cost of civil works to be undertaken on the Site.[17]
[17] First Vanco Affidavit [8]
Although I am not in a position to determine the issue of the scope of Works on an application such as this, a consideration of exhibits PH-1 and GV-2 shows both earthworks and civil work to be done to the whole of the Site, as well as a restricted area of work limited to the preparation of the pad for one glasshouse. On that basis, I consider the Schedule of Rates exhibited to Mr Haros' affidavit and Mr Vanco's affidavit was the amended Schedule of Rates which reflected a reduced quantity of work.
Mr Haros deposes that by late November 2019, BBS wanted "a submission in writing". A copy of that submission is exhibit PH-3 to the Haros Affidavit ("Haros and Sons tender") which Mr Haros deposes was handed by him to BBS's officers at a meeting on 3 December 2019. The respondents deny receiving the Haros and Sons tender and say it was not received until it was sent by email from Mr Hatzi to Ms Dagas on 20 April 2020.[18] The tender is in the sum of $1,019,403 plus GST.
[18] First Vanco Affidavit; Exhibit GV-5, Second Vanco Affidavit; Exhibit GV-20, Chung Affidavit; Exhibit DC-1
The respondent refers to the Vasili Affidavit and exhibit VWAV-3 which is a "properties" inquiry of the document described as the Haros and Sons tender sent by Mr Hatzi to Mr Dagas on 20 April 2020. That "properties" inquiry reveals the Haros and Sons tender (which is a PDF document) was created on 20 April 2020 at 2:47:55pm.
In my view, nothing turns on the date the PDF document was created. There is nothing to suggest that the Haros and Sons tender was not provided earlier and the fact that Mr Hatzi sends a PDF version on 20 April 2020 for the purposes of this application, conclusive of nothing other than the fact he sent it on that date.
In a letter from Mr Chung to Mr Haros sent 5 June 2020,[19] Mr Chung states that he has reviewed the background information and documentation passing between the parties and provides a schedule of events as part of what he describes as his investigation and recommendations.[20]
[19] Haros Affidavit; Exhibit PH-2
[20] Ibid at p1/8
A consideration of that letter reveals that by reference to the email from Mr Hatzi to Mr Dagas sent 23 September 2019, Haros and Sons gave a price of $1,109,403 for carrying out the civil works and bulk earthworks comprising 86,100 sq m but supplying and placing and compacting a 150mm thick pad for one glasshouse, office buildings and a 3m surround comprising 8,000 m².
I am not in a position on this application to resolve the dispute as to whether the Haros and Sons tender was first received by the respondents on 3 December 2019 or 20 April 2020, however it is common ground that the tender was not accepted.
Nonetheless, work proceeded as from in or about October 2019, although there is a dispute between the parties as to whether it was done in a diligent fashion and the extent of the work carried out.
Mr Vanco deposes in the First Vanco Affidavit that by 20 April 2020, Haros and Sons had abandoned the project and had only performed civil works over 38,500m² of the Site at a cost of $233,562.[21] Mr Haros denies that allegation[22] and deposes that the Works were completed.
[21] First Vanco Affidavit [13]
[22] Haros Affidavit [19]
Again, I am unable to resolve that issue on an application such as this.
It is common ground that Haros and Sons rendered two invoices to BBS, the first being invoice number 0460 dated 20 February 2020 addressed to BBS in the sum of $275,000 including GST.[23] That invoice gives a description of the Site and the project as "Glasshouses Stage 1". It identifies the work as "Bulk Earthworks and preparation of first glasshouse. Progress claim: 1".
[23] First Vanco Affidavit; Exhibit GV-4
The first tax invoice was paid.
On 2 March 2020, Haros and Sons issued tax invoice number 00463 to BBS in the sum of $220,000.[24] As with the first tax invoice, the project is described as "Glasshouses Stage 1" and the work is described as "Bulk Earthworks and preparation of first glasshouse. Progress claim: 2".
[24] Second Vanco Affidavit; Exhibit GV-21
That amount was not paid.
Mr Haros deposes that he has copies of the first and second tax invoices as they were issued by his wife. He deposes further that it is a common practice in the construction industry, and a practice which he has adopted over many years and did so for this project, to discuss with the client any document produced for a job such as tenders, rates, quotes, progress claims, invoices and to discuss and agree interim values prior to rendering tax invoices.[25]
[25] Haros Affidavit [11.2]
He continues that his practice occurred for the first and second invoice and what he described as additional progress claims ("additional Progress Claims") that form part of the claim the subject of these proceedings. He deposes that the additional Progress Claims were given to and discussed with Mr Chung but were not emailed.[26]
[26] Ibid at [11.3]-[11.5]
He continues that as the Works progressed he relied on Mr Hatzi to keep documentation. He had copies of what he described as the Progress Claim documents when proceedings were being drafted by his solicitor for the Notice of Demand for the Lien.[27]
[27] Ibid at [12]
He does not know where his copy of the Progress Claim calculations have been put and his solicitor does not have them. He has made inquiries of Mr Hatzi on a number of occasions to try and locate the Progress Claim documents on Mr Hatzi's computer and has searched extensively but is unable to find the additional Progress Claims. [28]
[28] Ibid at [14], [15]
The amount alleged by Haros and Sons as owing is set out in a letter from Haros and Sons' Solicitors sent 3 June 2021 to the respondents.[29] It comprises the second tax invoice and the additional Progress Claims, which together total $846,343.30 inclusive of GST.
[29] First Vanco Affidavit; Exhibit GV-10
A Notice of Demand was enclosed with Haros and Sons Solicitor's letter claiming $846,343.[30]
[30] First Vanco Affidavit; Exhibit GV-10
The additional Progress Claims comprising $626,343.30[31] have not been produced by Mr Haros and, as I have noted, he deposes that he does not know where his copy of the additional Progress Claim calculations has been put and that his attempts to find them have been without success.[32]
[31] Ie: $846,343.30 less $220,000 for the second tax invoice
[32] Haros Affidavit [14]-[17]
The Lien was lodged for registration on 23 June 2021.[33]
[33] First Vanco Affidavit; Exhibit GV-11
Proceedings in support of the lien were filed on 30 June 2021, with a revised Statement of Claim filed on 27 October 2021[34] and a further revised Statement of Claim filed on 10 November 2021.[35]
[34] FDN7
[35] FDN13 (Although Revision Two, the document is titled Revision One)
In the Statement of Claim filed 10 November 2021, Haros and Sons allege an oral contract was entered into between it and BBS for the Works at a final price to be determined in accordance with the Schedule of Rates.[36]
[36] Revised statement of claim [19]
In the alternative to an oral contract, Haros and Sons plead that BBS and Lomandra through their agents and representatives- Mr Chung and Mr Vanco- by their actions in accepting work done, seeking work to continue and seeking additional works at a price to be determined in accordance with the Schedule of Rates, entered into a contract by acceptance of the Works.[37]
[37] Revised statement of claim [20]
Respondents' submissions
In this matter, I was assisted by comprehensive submissions from the respondents and the applicant. I have taken all of those submissions into account.
Summary judgment
The first order sought by the respondents is that the proceedings be dismissed insofar as they relate to the enforcement of the Lien and to that extent the respondents seek summary judgment in relation to that part of the proceedings.
They refer to Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd.[38] In that matter Doyle J considered the test for summary judgment pursuant to Uniform Civil Rules ("UCR") rule 144.2(2). That rule provides:
(2) The Court may, on application by a party, give summary judgment against an applicant—
(a) on a claim if there is no reasonable basis for prosecuting the claim;
(b) on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c) on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
[38] [2020] 137 SASR 117, at [56]-[60]
In considering UCR 144.2(2), his Honour considered that the expression "no reasonable basis" requires a consideration of the existing basis for the claim. His Honour observed that the position is as stated by the High Court in Spencer v Commonwealth of Australia,[39] which his Honour summarised in the following terms (citations omitted): [40]
- The power to determine a claim summarily should not be exercised lightly;
- Exercise of the power requires a practical assessment of whether the applicant has a real, as opposed to merely fanciful, prospect of success;
- The court must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law merely because the court considers that the claim is unlikely to succeed. I add that is equally applicable to a cause of action forming part of a claim which in this case is the cause of action to enforce the Lien;
- The court should undertake a practical assessment and not embark upon a "mini trial" of the claim. The claim should be assessed in a summary manner while being cognisant of the incomplete nature of the evidence upon which the court's decision must be based;
- Adversarial argument may assist but the need for prolonged argument may be indicative of a reasonable basis for the claim
[39] [2010] 241 CLR 118, [24]-[26]
[40] Ibid at [59]-[60]
The respondents submit that there is no reasonable basis for the claim on what they described as two critical elements:
1.The first is that a lien can only support a contract price and not a restitutionary claim in quantum meruit; and
2.The Notice of Demand under s 10 can only be given after an amount the subject of the notice has accrued due and become payable.
Restitutionary claim

As to the first of those two elements, there is no dispute that a Lien can only support a contract claim and not a restitutionary claim in quantum meruit.[41]
[41] Cubelic and Sons Pty Ltd v Civil Works Group (SA) Pty Ltd & Ors [2008] SADC 41
Insofar as the respondents seek summary judgment on the basis that the claim is a restitutionary claim, I do not accept that submission. It is quite clear to me on the documents upon which both parties rely that there is a dispute as to whether a contract exists and if so, the terms of that contract. This is not a case where there is no reasonable basis established for prosecuting the cause of action in relation to the Lien and I decline to summarily dismiss part of the claim.
A notice of demand under s 10 can only be given after the amount the subject of the notice has accrued due and become payable.
As to the second element, the respondents refer to sections 5 and 10(1) and (2) of the Act which are in the following terms:
5—Lien of contractor or sub-contractor
A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases:
(a) Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
10—Lien to be registered
(1) A lien under this Act with regard to land shall be available only if registered before the expiration of twenty-eight days after the wages or contract price in respect of which such lien has arisen shall for the purposes of this section have become due.
(2) Any wages or contract price shall for the purposes of this section be deemed to have become due—
(a) if unpaid for seven days after the same (being payable) shall have been demanded by notice in writing, signed by the person claiming the same and given to the person liable to pay the same, or posted in a registered letter addressed to him at his usual or last known place of abode in South Australia:
(b) …
The respondents submit that it is a pre-requisite for the registration of a lien that there must have been a present debt accrued due payable and unpaid prior to the giving of a notice of demand under s 10. They submit that in order to determine whether or not the contract price has become due, one must have regard to the contract.[42] In support of this submission, the respondents refer to the Schedule of Rates[43] and to the pleaded case in the Statement of Claim filed on 10 November 2021. In particular:
- The applicant pleads it provided a Schedule of Rates which was a "ready reckoner" providing indicative rates;[44]
[42] Ginos & Associates Ltd v Accordent Pty Ltd [1998] SASC 7023 at [20]-[21]
[43] First Vanco Affidavit; Exhibit GV-2, Haros Affidavit; Exhibit PH-1
[44] Statement of Claim; Rev 1; FDN13 [9]
- The respondents requested the applicant to commence work;[45]
- The applicant commenced work prior to any finalisation of any quote or contract;[46]
- A tender response said to have been provided on 3 December 2019 was not accepted;[47]
- The respondents produced amended plans and the applicant kept working.[48]
[45] Ibid [11]
[46] Ibid [12]
[47] Ibid [14]
[48] Ibid [18]
The respondents refer to the applicant's pleading of an alleged oral contract or a contract formed by acceptance of the Works[49] before referring to the claims at paragraphs 22 and 23 of the revised Statement of Claim which pleads the invoices.
[49] Ibid [19], [20]
They emphasise the pleading in paragraph 24 which reads:
24.Haros also provided to the Respondents progress payment claims of $626,343.30 calculated from the Schedule of Rates, that when combined with Haros's unpaid INV-0463 in the sum of $220,000.00, shows that BBS owes the sum of $846,343.30 that remains outstanding, despite the earlier promise of Chung, Vanco and BBS to pay forthwith.
Against that background, the respondents submit that the claim for enforcement of the Lien relies upon the allegation at paragraph 24 whereas the evidence of both Mr Vanco and Mr Chung is no Progress Claims were received, the allegation is not true and no documents have been produced.[50]
[50] Second Vanco Affidavit at [6], [7]; Chung Affidavit [6], [7]
The respondents submit that since the applicant has not produced any evidence to support the allegation that the additional Progress Claims were provided, there is no dispute of fact on the issue.
I do not accept that submission. Mr Haros in his affidavit deposes that he disagrees with what Mr Chung deposes in his affidavit at paragraphs 6 and 7, saying that the Progress Claims were given to Mr Chung and discussed with him. They were not emailed.[51]
[51] Haros Affidavit [11.5]
None of the deponents in this matter were cross-examined. In an application such as this, the Court is unable to determine the issue of whether the additional Progress Claims were provided or not in circumstances where there is an explanation as to why the applicant has not produced them.
Further, there are a number of other consideration.
First, although there is no pleading nor any evidence as to the contractual terms governing payment, that does not mean there is no contract. It may be that the terms of contract are, for example, to be implied or may be contained in documents which the Court has not seen.
Second, it is not a requirement of s 10 of the Act that an invoice be rendered, simply that there be a Notice of Demand relating to the contract price or to such amount as may be accrued due and payable. Mr Dal Cin of counsel, who appeared for the respondents, submits that there is a distinction on the evidence between tax invoices and progress claims. He points to Mr Haros making reference in his affidavit to "progress costs" becoming a tax invoice,[52] "progress claim calculations"[53] and a reference to progress claims and invoices.[54] On that basis he submits it must be the case that progress claims were made first, followed by a tax invoice. He submits that since Mr Haros does not depose as to the issue of tax invoices following the additional Progress Claims, it follows that no tax invoices for the sum of $626,343.30 were provided to BBS or the first and/or second respondents as agents for BBS.
[52] Ibid at [13]
[53] Ibid at [14]
[54] Ibid at [11.2]
I do not accept that submission for a number of reasons:
First, as I have noted above, it is not a pre-requisite for the registration of a lien for an invoice to be issued. It is a pre-requisite for an amount due to have accrued and be payable under the terms of the contract but there is nothing before me to suggest that was not the case and that issue will have to await trial. There is no suggestion that the Notice of Demand was not validly given or that proceedings were not issued within time.
Second, the two tax invoices dated 20 February 2020- number 0460-[55] and the second tax invoice dated 2 March 2020- number 0463-[56] both contain a notation that they are Progress Claims, being Progress Claims 1 and 2 respectively. The distinction that Mr Dal Cin seeks to make between tax invoices and Progress Claims is not made out.
[55] First Vanco Affidavit; Exhibit GV-4
[56] Second Vanco Affidavit; Exhibit GV-21
Third, I note that there is no suggestion that the amount of $220,000, the subject of the tax invoice dated 2 March 2020- invoice 0463 is not accrued due and payable.
Under those circumstances, I do not accept the respondents' submission that on no view of the law or the facts can there be a finding that the additional Progress Claims were made.
Conclusion
In all the circumstances, I do not consider that a basis has been shown by the respondents that the court should exercise its discretion under s 32 of the Act to cancel the Lien.
Confidentiality issue
The orders sought in paragraphs 5 and 6 of the respondents' interlocutory application are said by the respondents to arise out of confidentiality concerns.
The respondents submit that there is highly sensitive information in both the First Vanco Affidavit and in the Statement of Claim in relation to the commercial activities being conducted by BBS on the Site. They submit that the applicant can advance its claims without making allegations in public documents. It refers to the First Vanco Affidavit and the non-disclosure agreement entered into by Mr Haros for Haros and Sons.[57]
[57] First Haros Affidavit; Exhibit GV-3
In the First Vanco Affidavit, Mr Vanco deposes:[58]
9.BBS, pursuant to its licensing conditions from a Commonwealth agency, required the purpose and location of its facility to remain confidential. One of the licensing requirements was that BBS' facility be referred to as a "horticulture facility". This is a very significant matter for BBS as non compliance puts its proposed business activity at risk.
10.In order to ensure that BBS complied with its licensing requirements, including any and all contractors and agents thereof who were to perform any works in relation to the property upon which its facility was to be established, BBS required the applicant to execute a non-disclosure agreement. On 23 September 2019 the AHS (sic) executed that agreement. Annexed hereto and marked with the letters "GV-3" is a copy of the executed Non-Disclosure Agreement dated 23 September 2019.
[58] First Vanco Affidavit [9]-[10]
The paragraphs across all versions of the Statement of Claim to which, as I understand it, the respondents seek confidentiality orders are those in paragraphs 4.2, 7, 10, 11, 5.2 and 22.7 (sic 21.7). Paragraphs 7, 10, 11 and 21.7 refer to the product the subject of the production facility planned by BBS. Paragraph 5.2 identifies the location of the property.
The complaints made by the respondent about confidentiality and the alleged breach by Haros and Sons of the confidentiality agreement[59] were first raised in a letter from the respondents' Solicitors Terese Wacyk dated 26 July 2021.[60] In that letter, the respondents' solicitors identify confidential matters referred to in the identified paragraphs in the Statement of Claim.
[59] First Vanco Affidavit; Exhibit GV-3
[60] First Vanco Affidavit; Exhibit GV-1
The respondents refer to the non-disclosure agreement[61] between BBS and Haros and Sons and in particular clause 2 under the heading "Confidential Information". In particular, they rely on the chapeau to clause 2 as well as clauses 2a, d, e and g.
[61] First Vanco Affidavit; Exhibit GV-3
Those issues of confidentiality were replied to in a letter from Haros and Sons' Solicitors to the respondents' Solicitors on 26 October 2021.[62]
Chapeau
[62] Haros Affidavit; Exhibit PH-5
As to the chapeau to clause 2, the confidential information refers to data and information relating to the product or products of the information provider who in this case is defined as BBS as well as all data and information relating to the information provider. It is not clear what that might comprise but clearly information relating to BBS, as a private company is readily available on a ASIC search. I do not consider the Statement of Claim pleads anything that deals with data relating to BBS.
Clause 2a- Customer information
In my view, there is no pleading concerning customer information as that term is defined in the non-disclosure agreement.
Clause 2d- Business operations
I do not consider there is anything in the Statement of Claim which contravenes this clause. In particular, there is nothing as to the manner and methods of conducting BBS's business other than glasshouses but I do not consider the reference in the statement of claim to glasshouses to relate to the manner and method of conducting BBS's business. The respondents submit that the location of the Site is confidential and comes within clause 2d, however I do not accept that submission.
Clause 2e- Product information
I do not consider there is anything in the Statement of Claim which contravenes this clause.
Clause 2g
I do not consider there is anything in the statement of claim which contravenes this clause.
Overall, the respondents submit that the pleadings should not be used as a vehicle through which confidential matters are made public. I do not consider that the matters about which the respondents complain are confidential matters within the meaning of the non-disclosure agreement.
The applicants submit that in any event, information concerning the location of Lomandra's facility is readily available through a Land Services SA search and submit further that there is no dispute that Lomandra is a wholly owned subsidiary of BBS, a factor also readily ascertainable from an ASIC search. I accept the applicant's submissions.
Nevertheless, I accept there is some sensitivity on the part of the respondents to having a pleading identifying the matters they raise. I accept also that the applicant does not need to plead the matters in the paragraphs of the Statement of Claim about which the respondents complain.
In those circumstances, in the exercise of the Court's inherent jurisdiction, I order the Statement of Claim (FDN1), the First Revised Statement of Claim (FDN7), the Second Revised Statement of Claim (FDN13) and the First Vanco Affidavit be marked for restricted access.
I order the applicants to amend the Second Revised Statement of Claim filed 10 November 2021 by filing and serving a further Revised Statement of Claim pleading alternative descriptions of the activity carried out by BBS on the land and to remove the address of the Site by on or before 16 December 2021.
Conclusion
The respondents' interlocutory application is dismissed.
I will hear the parties as to the question of costs.