Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd - [2023] SASCA 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS
[2023] SASCA 101
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Stanley)
28 September 2023
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS
The applicant seeks leave to appeal from the decision of the judge managing these large and complex commercial proceedings making orders varying a confidentiality regime that had been put in place earlier in the proceedings. The confidentiality regime was initially imposed due to the commercial sensitivity of certain documents arising from the parties to the proceedings being trade rivals.
The effect of the variation was to permit three representatives of the respondents, two of whom are themselves respondents, to have access to information in the applicant’s documents, expert reports and pleadings that would otherwise have been protected by the confidentiality regime. The judge imposed conditions on how the confidential information was to be accessed to mitigate the risk of misuse.
The application for leave to appeal was referred for hearing with the appeal.
The Court held (granting leave to appeal but dismissing the appeal):
1.The decision to vary the confidentiality regime involved an exercise of judicial discretion by the primary judge on a matter of practice and procedure, thus attracting the principles of appellate restraint in House v The King (1936) 55 CLR 499 at 504-5. The applicant failed to establish that the primary judge erred in the exercise of the discretion.
2.It is necessary to balance the interest the applicant has in seeking to protect its confidential information from a trade rival against the interest the respondents have in being able to participate in a direct and informed way in these large and complex commercial proceedings. As result of the confidentiality regime, the respondents have not been able to access the information which underpins their own cross claim, as well as the applicant’s claim for loss.
3.A significant consideration in the present matter was the timing of the application to vary the confidentiality regime. The proceedings are listed for trial in August next year. It is appropriate given the complexity and scale of these proceedings to speak of the trial as ‘approaching’. It is difficult to envisage the trial being conducted without a variation to the confidentiality regime allowing the respondents to access the confidential documents.
4.The balancing exercise inherent in determining whether access should be granted involves having regard to the extent of the protection of the confidential information that may be achieved through conditions of the access being granted. In the present matter the primary judge imposed rigorous conditions on how the confidential information could be accessed.

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2023] SASC 86; Atkins v Protected Person [2022] SASCA 130; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478; Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17) [2018] VSC 750; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321; Commonwealth of Australia v Saadat (2019) 134 SASR 184; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Fonterra Brands Australia Pty Ltd v Bega Cheese Limited [2018] VSC 471; Harris Scarfe Ltd v Ernst & Young (No 2) [2005] SASC 168; House v The King (1936) 55 CLR 499; HT v The Queen (2019) 269 CLR 403; Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 686; Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37; Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34; NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 ; Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115; Richani v Martins Plaza Shopping Centre Pty Ltd (No 2) [2022] SASC 98; State of Victoria v Brazel (2008) 19 VR 553; Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354, considered.

ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS
[2023] SASCA 101
Court of Appeal – Civil: Livesey P, Doyle JA and Stanley AJA

THE COURT: The judge managing these large and complex commercial proceedings made orders varying a confidentiality regime that had been put in place earlier in the proceedings.[1] The effect of the variation was to permit three representatives of the respondents, two of whom are themselves respondents, to have access to information in the applicant’s documents, expert reports and pleadings that would otherwise have been protected by the confidentiality regime.
[1] Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd (No 3) [2023] SASC 86 (Reasons).
The applicant seeks leave to appeal from this decision. The application for leave to appeal was referred for hearing with the appeal.
From the applicant’s perspective, the variation to the confidentiality regime would permit the principals, and commercial decision makers, of the respondent companies to have access to a significant volume of commercially sensitive information, in circumstances where those companies are trade rivals with the applicant. The applicant contends not only that there is merit in its proposed grounds of appeal, but also that it will suffer substantial prejudice and injustice if the variation is left to stand.
The respondents, on the other hand, emphasise that the proposed appeal concerns a discretionary decision by the primary judge that relates to a matter of practice and procedure, in the management of large and complex commercial proceedings. The respondents contend that the variation was necessary, or at least appropriate, in order to enable the respondents’ legal advisors to fulfill their obligations in conducting these proceedings, and in particular in taking instructions from, and giving advice to, their clients, and enabling their clients to participate and make decisions in an informed way. They contend that, in circumstances where access to much of the material in respect of which confidentiality has been claimed will be required in order to conduct the trial, the primary judge was correct to conclude that the proceedings had reached the stage where it was appropriate that access be provided to representatives of the respondent companies, albeit on strict conditions designed to minimise the risk of misuse. The respondents contend that in circumstances where the applicant’s proposed challenge to the variation to the confidentiality regime made by the primary judge is lacking in merit, and where the applicant has not identified any substantial injustice associated with letting the variation stand, leave to appeal should be refused.
For the reasons which follow, we would grant leave to appeal but dismiss the appeal.
Background
The application for leave to appeal, and appeal, will ultimately fall to be determined by reference to the relatively broad considerations addressed later in these reasons. However, in order to place the issues raised by the parties in their proper context, it is appropriate to first address some of the detail relied upon by the parties. Accordingly, we shall commence by identifying the parties and the commercial relationship between them, before then summarising the issues arising in the proceedings, the procedural background to the impugned variation to the confidentiality regime, and the evidence relied upon by the parties in relation to the respondents’ application seeking that variation.
The parties
The applicant (Adelaide Brighton Cement Limited (ABCL)) is a manufacturer of cementitious products. The first respondent (Hallett Concrete Pty Ltd (Hallett)) is a manufacturer of premix concrete and in recent times an importer and wholesaler of cementitious products. The second respondent (SA Premium Cement and Concrete Pty Ltd (SAPCC)) is a company which is related to Hallett and involved in its importation of cementitious products.
The third and fourth respondents (Mr Pickard and Mr Hosking) are the principals of Hallett and SAPCC respectively. Mr Pickard and Mr Hosking, together with a Mr Salisbury, are the three representatives of the respondents to whom the primary judge’s variation of the confidentiality regime permitted access to ABCL’s confidential information.
ABCL contends, and it does not appear to be disputed, that Messrs Pickard, Hosking and Salisbury are the guiding minds and commercial decision-makers of Hallett, SAPCC and the wider Hallett group of companies. Mr Pickard is the sole director and ultimate majority owner of Hallett. ABCL alleges that he is the ultimate controller and majority owner of the entire Hallett group, including SAPCC. Mr Hosking is the sole director of SAPCC. Mr Salisbury is the chief executive officer of both Hallett and SAPCC.
There is no dispute that ABCL and Hallett, and indeed their wider corporate groups (the Adbri and Hallett groups), are significant trade rivals in respect of the supply of premix concrete and other cementitious products within the South Australian market.
ABCL adduced evidence which it contends supports its suggestion that this rivalry is likely to intensify and expand given the multimillion dollar investments presently being undertaken by the Hallett group. These investments include the construction of major cement blending and distribution hubs in Port Adelaide and Port Augusta, together with a supplementary cementitious materials processing facility in Port Augusta.
ABCL contends that it is apparent from this evidence that the Hallett group intends to use these facilities to service mining customers in South Australia, particularly in the region to the north of Port Augusta, and hence including BHP’s operations at Olympic Dam and the mining operations at Carrapateena and Prominent Hill acquired by BHP in its recent takeover of Oz Minerals. ABCL currently supplies significant volumes of cementitious products to mining companies, including in respect of the mining operations just mentioned.
ABCL contends that it is also apparent that the Hallett group intends to pursue customers in other mainland States and the Northern Territory in respect of the supply of cementitious products, and hence to compete with ABCL in these markets.
The Cement Supply Agreement
In April 2008, ABCL and Hallett entered into a Cement Supply Agreement (the CSA) which was subsequently varied on 1 July 2014. They remained parties to the CSA until it was terminated in April 2020.
Pursuant to clause 5.1.1 of the CSA, and in general terms, Hallett was required to purchase cementitious products for its own use and consumption exclusively from ABCL (the exclusivity obligation).
Pursuant to clause 9.2, Hallett was to be a “most favoured customer” and so receive the “Comparison Price” from ABCL, being the lowest net price per tonne charged by ABCL to “Customers” in South Australia for that particular product in that particular month (the most favoured customer term).[2] A “Customer” was someone other than Hallett who purchased “Product” (being “bulk cementitious materials”) from ABCL “for use in the manufacture of premix concrete”.[3]
[2] CSA, clause 1.1, and putting to one side the Project specific pricing addressed in limb (a) of the definition of “Comparison Price”.
[3] CSA, clause 1.1.
These proceedings
In September 2019, ABCL commenced proceedings against Hallett for breach of the exclusivity obligation and against the other respondents for their tortious conduct in connection with that breach. ABCL alleges that Hallett breached its obligation by importing cement and slag into South Australia for Hallett’s own use and consumption in the period between about June 2017 and April 2020. In the alternative, ABCL alleges that Hallett breached the CSA by establishing SAPCC as a proxy for Hallett and allowing SAPCC to step into its role and purchase cement that Hallett would otherwise have been obliged to purchase from ABCL.
ABCL’s further alternative claims in tort allege, in general terms, that Hallett, Mr Pickard and Mr Hosking used SAPCC as a vehicle to attempt to deliberately circumvent Hallett’s purchasing obligations under the CSA and with the intention of causing ABCL loss. ABCL also advances claims for misleading and deceptive conduct, for unconscionable conduct and in debt.
The loss claimed by ABCL is based on its loss of sales revenue from Hallett, but necessarily addresses questions of the mitigation of that loss by supplying others, and in particular, a related entity Independent Cement & Lime Pty Ltd (ICL) operating in Victoria. ABCL’s formulation of its loss is supported by an expert report from a forensic accountant, Mr Morris.
In essence, ABCL claims the net revenue it lost by Hallett (or SAPCC) purchasing cement elsewhere, in breach of the exclusivity obligation. The calculation of this net revenue involves determination of the difference between the revenue ABCL would have made from selling to Hallett the total volume of imported cement used in the manufacture of premix concrete by Hallett and/or SAPCC, and the revenue it received from selling that volume of cement to ICL. It thus requires identification of the revenue ABCL would have made from selling cement to Hallett, having regard to the price at which ABCL was entitled to charge Hallett in any given month (given the most favoured customer term under the CSA). It also involves consideration of ABCL’s production capacity (including production issues that affected ABCL’s cement mill during the relevant period), and ABCL’s cement stocks and sales of cement out of its Birkenhead plant. It involves taking into account ABCL’s arrangements with ICL, and ICL’s requirements for cement during the relevant period. The arrangements between ABCL and ICL during the relevant period were complicated by ABCL sourcing cement from domestic and international suppliers, including pursuant to swap arrangements.
The respondents’ defences to the ABCL claims include an argument that, because the cement was imported in “bulker bags” or “Jumbo bags”, the cement imported was not “Product” for the purposes of the CSA.
In February 2020, Hallett filed a cross claim alleging breach by ABCL of the most favoured customer term. The initial version of the cross claim was struck out in August 2020. In November 2020, Hallett sought leave to file an amended version of its cross claim, and in May 2021, Hallett was granted leave to file its cross claim.
By its cross claim, Hallett alleges, inter alia, that ABCL breached its obligations under clause 9 of the CSA by charging Hallett in excess of the Comparison Price that was said to be available to a wide range of customers, including mining customers (referred to in the cross claim as “batching plant customers”) and premix customers (referred to as “independent batching plant customers”).
The cross claim allegations in respect of mining customers include the supply at various times of cementitious products by ABCL, at rates lower than Hallett prices, to BHP Billiton Olympic Dam Corporation Pty Ltd and related entities (including for use in BHP’s Olympic Dam mining operations), Exact Contracting Services Pty Ltd and related entities (being contractors to BHP), Downer EDI Mining Pty Ltd, Oz Minerals Limited and related entities, and Lendlease and related entities.
The cross claim allegations in respect of breaches involving supply to various customers to whom ABCL supplied premix cement for them to deliver in special purpose mixing trucks to construction sites (that is, the premix customers[4]) include particular instances of supply to these customers at lower invoiced amounts, pursuant to agreements that included rebates or discounted transport costs, and pursuant to swap arrangements with other cement producers.
[4] For example, Holcim (Australia) Pty Ltd, Hanson Australia Pty Ltd, Cement Australia Pty Ltd, Boral Limited, Concrete Supply Pty Ltd, Turners Readymix Concrete, and Direct Mix and Southern Quarries (being two subsidiaries of ABCL).
Other allegations of breach are pleaded by Hallett in its cross claim, including in respect of alleged “Proper Invoicing Obligations” and an “All Products Obligation”, as well as in respect of ABCL’s termination of the CSA for breach by Hallett.
Under Hallett’s cross claim, the prices at which ABCL sold cementitious products to other customers is relevant to both liability (that is, the existence of breaches of the most favoured customer term by ABCL) and the quantum of any damages payable. Those prices are also relevant to ABCL’s loss claim, given that the respondents have pleaded a link to Hallett’s cross claim in their defence to ABCL’s loss claim; in particular, the allegation at paragraph [40.10] of the defence to the effect that ABCL’s loss must be calculated having regard to the proper interpretation of the most favoured customer term (which the cross claim alleges was consistently breached).
ABCL’s defence to Hallett’s cross claim, in addition to denying the alleged breaches, pleads that the mining customers were not “Customers” for the purpose of the CSA (and in particular the most favoured customer term) as they did not batch and supply premix concrete to the construction industry in South Australia in competition with Hallett. On ABCL’s case, only premix customers who purchase ready mix, or premix, cement for supply to ultimate consumers are “Customers”. Mining operators who mix up concrete on site from cement supplied by ABCL to shore up underground mining operations, by way of backfilling mined out stopes, or applying shotcrete to walls and roofs of underground drives, are not captured by the expression “Customers”.
In addition to ABCL’s claim and Hallett’s cross claim, the primary judge has been managing related proceedings against ABCL commenced by another of Mr Pickard’s companies, Contract Mining Services Pty Ltd (CMS). The CMS proceedings also involve both claims and cross claims.[5] They concern payments for services, including haulage services, provided by CMS to ABCL. The CMS proceedings have become entwined with the present proceedings. In part this is because ABCL terminated the relevant services agreement with CMS upon terminating the CSA, which termination CMS alleges was unlawful by reason of the matters pleaded in the cross claim in the present proceedings.
[5] With the cross claim including Hallett as a third party respondent.
In the CMS proceedings, CMS sues for unpaid charges and ABCL cross claims to recover amounts paid on the basis of overpayments by mistake, but also on the basis that it was induced to agree to higher charges by false representations by Mr Pickard and Mr Salisbury that Hallett could obtain cheaper equivalent slag than under the CSA, but would not seek to press for a lower payment to ABCL under the CSA if ABCL agreed to higher charges under its haulage agreements with CMS. ABCL says that it has since discovered that these representations were false and misleading, and were made at a time when Hallett and CMS knew or intended that Hallett would shortly thereafter substantially reduce its purchases of slag from ABCL.
Procedural history in relation to confidentiality claims

These proceedings have been judge managed since they were first issued in September 2019. The primary judge took over management of the proceedings in late 2020, and so has been managing the proceedings for about two and a half years. The proceedings are listed for trial in August next year.
In April 2020, the parties consented to orders that put in place a confidentiality regime permitting the parties, when making discovery of documents, to mark them as confidential. The confidentiality regime confined access to the documents marked as confidential to solicitors and experts who have signed and filed confidentiality undertakings in the prescribed form. It followed that the parties were prevented from access to the confidential documents and the information they contained.
Whilst only expressly applying to discovered documents, the parties have applied the regime to any use of the confidential documents or information in the proceedings, resulting in the redaction of various of the affidavits, pleadings and other documents filed in the proceedings. The expert report prepared by Mr Morris in support of ABCL’s loss claim has also been heavily redacted.
The application to vary the confidentiality regime that is the subject of the present application for leave to appeal had its genesis in an application filed by the respondents in November 2021. That version of the application sought a variation to the confidentiality regime that would permit three representatives of each side access to the other side’s confidential documents, upon them giving a confidentiality undertaking in an agreed form. Mr Pickard and Mr Hosking were identified as two of the respondents’ proposed representatives. The application was later amended to name Mr Salisbury as a further proposed representative of the respondents.
Following an iterative process between the parties, and through revisions of the application filed in September 2022 and then February 2023, the range of documents in respect of which the respondents’ sought access was refined. Ultimately access was sought to the approximately two thousand documents set out in the table which is exhibit CJR 223 to the 19^th affidavit of Ms Robinson (a solicitor for the respondents) (referred to as ‘19 Robinson’ in accordance with the terminology that has been adopted in these proceedings when referring to affidavits). Access was sought through Mr Pickard, Mr Hosking and Mr Salisbury on the condition that they sign confidentiality undertakings, and various other conditions intended to reduce the risk of any misuse of the confidential information. In the alternative, the respondents sought an order that the documents in exhibit 223 be excluded from the confidentiality regime, although this limb of the application, while not abandoned, was not pressed at the time of argument before the primary judge.
Ms Robinson divided the documents to which access was sought into the following categories:[6] (a) documents relevant to the respondents’ allegations in the cross claim (and in turn, the respondents’ defence to ABCL’s loss case) (being documents in relation to the alleged supply by ABCL to mining customers and premix customers at prices lower than those offered to Hallett);[7] (b) documents relevant to the formulation of ABCL’s loss case and the expert report of Mr Morris relied upon by ABCL in support of that loss case (being documents relevant to ABCL’s supply arrangements with ICL, and the calculation of the net revenue it lost by not selling to Hallett);[8] and (c) documents relevant to other matters raised in ABCL’s claim.[9]
[6] 18 Robinson at [134].
[7] As explained in 13 Robinson at [271].
[8] As explained in 13 Robinson at [278].
[9] As explained in 13 Robinson at [281]-[284].
The documents to which access was sought contain information relating to ABCL’s prices for its mining and premix customers, as well as other aspects of ABCL’s commercial relationships with its customers and suppliers. The documents sought also include internal documents relating to ABCL’s costs of producing cementitious products and other matters of strategic significance to ABCL.
At one point in the process of refining the terms of the respondents’ application for access to documents, the application was adjourned to allow what came to be referred to as a ‘tutoring exercise’ to be undertaken. The tutoring exercise was suggested by the primary judge in October 2022 as a means of potentially narrowing or resolving the dispute between the parties. Pursuant to the tutoring exercise, ABCL permitted Messrs Pickard, Hosking and Salisbury, after giving confidentiality undertakings, to inspect a subset of ABCL’s confidential documents (being essentially documents relevant to the pricing of ABCL’s supply to one of its mining customers (Jetcrete) for the period from 1 July 2014 to 30 June 2016,[10] and documents relevant to the price of ABCL’s supply to various of its premix customers for the period July 2014 to 31 December 2017). The apparent purpose of the tutoring exercise was to permit the respondents’ representatives to have access to these documents to instruct their legal advisers in how to read and understand the pricing and other information in them. It was anticipated that this would enable the respondents’ legal team to better understand the balance of the confidential documents, and thereby assist them to fulfill their duties and responsibilities as legal practitioners in conducting these proceedings on behalf of their clients.
[10] Access was later extended to Jetcrete documents through to 1 January 2018.
For the reasons summarised later, the respondents do not consider that the tutoring exercise was sufficient to alleviate their prejudice, and hence alleviate the need for them to pursue a variation of the confidentiality regime.
Following further hearings during April and May 2023, the primary judge made orders on 31 May and 7 June 2023 permitting the access sought by the respondents.[11]
[11] Being order 1 made on 31 May 2023 and orders 1 and 2 made on 7 June 2023.
The effect of the orders was to permit each of Messrs Pickard, Hosking and Salisbury to access the confidential information in respect of which access had been sought on terms that they sign undertakings that they will only access that information in accordance with the proposed protocol, will not use it other than for the purposes of the within proceedings, and will otherwise keep it confidential. The protocol for accessing the confidential information was to be supported by undertakings from the respondents’ legal representatives, and to contain the following safeguards:[12]
·hard copy documents are reviewed only on the premises of the respondents’ solicitors and not removed;
·the review of electronic documents is by way of a dedicated personal computer which has no internet access, network access, wifi or bluetooth connectivity or connected printer, and which has its USB ports disabled from copying files to an external device;
·no hard copy documents, or notes of the content of any of those documents, are to be taken from those premises by the respondents’ representatives; and
·the review of the documents is to be supervised by one of three specified members of the firm representing the respondents who has provided a confidentiality undertaking.
[12] Proposed by the respondents, set out in Reasons at [49], and ultimately reflected in the more detailed provisions of the proposed undertakings annexed to the orders made on 7 June 2023.
The evidence
The parties relied upon a significant volume of detailed affidavit evidence in support of their respective positions on the interlocutory application seeking a variation of the confidentiality regime.
ABCL relied upon passages from affidavits of one of its solicitors (Mr Walsh[13]), the chief strategy officer of Adbri Limited (Mr Miller[14]) and a solicitor for ICL (Ms Whiting[15]). The respondents relied upon passages from affidavits of two of its solicitors (Mr Brennan[16] and Ms Robinson[17]).
[13] 14 Walsh (dated September 2022) and 16 Walsh (dated March 2023).
[14] 1 Miller (dated March 2022), and 2 Miller (dated March 2023).
[15] Whiting (dated April 2022).
[16] 7 Brennan (dated November 2021).
[17] 6 Robinson (dated March 2022), 8 Robinson (dated April 2022), 13 Robinson (dated September 2022), 18 Robinson (dated February 2023) and 19 Robinson (dated March 2023).
These affidavits covered a range of topics. The topics covered included the identification and nature of the documents and information in respect of which confidentiality was claimed, and an explanation from the respondents’ solicitors as to why a variation to the confidentiality regime was considered necessary. The affidavits also included an explanation for ABCL’s opposition to the variation sought, both by reference to the nature and importance of its claim of confidentiality given its trade rivalry with the Hallett group, and by way of response to the material filed by the respondents.
The extracts from the affidavit evidence (including exhibits) provided to this Court for the purposes of the appeal run to well in excess of a thousand pages. Reference to the extent of the evidence is not intended as a criticism of the parties, or the manner in which they have conducted the proceedings or the present application. Rather, it is intended merely to give an indication of the scale and complexity of the matters in issue, and the extent and detail of the documents and information relevant to their resolution.
As developed later in these reasons, the scale and complexity of the litigation, and indeed the detail of the material relevant to consideration of the respondents’ application to vary the confidentiality regime, is significant when considering the deference to be shown to the primary judge’s exercise of judgment in determining whether, and on what terms, the existing confidentiality regime should be varied.
It is neither practical nor necessary to summarise all of the detail contained in the affidavit material before this Court. We propose to confine ourselves to identifying (and to some extent summarising) the key aspects of that evidence. It is otherwise sufficient to observe that we have perused the entirety of the affidavit material placed before this Court, with a focus upon the passages to which we were directed by the parties.
ABCL’s evidence as to trade rivalry and commercial sensitivity
In explaining the nature and extent of the Adbri group’s trade rivalry with the Hallett group, ABCL relies primarily upon the evidence of Mr Miller, as supplemented in some respects by the evidence of Ms Whiting and Mr Walsh.
Mr Miller provided an overview of the nature of the business operated by ABCL (and the broader Adbri group) and its competitive relationship with Hallett, SAPCC and the broader Hallett group.
Mr Miller explained that Hallett is a competitor of ABCL (and other entities within the Adbri group) for the supply of bulk cementitious products,[18] with SAPCC also becoming a competitor in more recent times. In explaining the competitive relationship between the two corporate groups, Mr Miller often distinguished between the mining customers and premix customers, given the differing considerations raised by these two groups of customers.
[18] 1 Miller at [16].
In relation to the mining customers, Mr Miller identified the key customers and the large scale of the business (both in terms of tonnages of cementitious products and dollars of revenue), describing those customers as “the lifeblood” of ABCL’s business.[19] Through reference to public statements from the Hallett group and other media reporting, he described the Hallett group’s recent investments in significant infrastructure at Port Adelaide and Port Augusta and their potential to enable it to compete more effectively with the Adbri group in relation to these customers, both in South Australia and also interstate.[20] Mr Miller explained that, in the case of mining customers, the stability of prices meant that information dating back several years remained commercially sensitive and valuable.[21]
[19] 1 Miller at [55]ff, 2 Miller at [29]-[30].
[20] 1 Miller at [120]-[127], 2 Miller at [13]-[17]. See also 14 Walsh at [159].
[21] 1 Miller at [65].
As for the premix customers, Mr Miller explained that Hallett and SAPCC were actively seeking to supply cementitious products to various of these customers, in direct competition with ABCL. He emphasised the price sensitivity of the commercial arrangements in this sector of the market.[22]
[22] 2 Miller at [80].
Mr Miller summarised the categories of information within ABCL’s discovery which were said to be commercially sensitive and in respect of which confidentiality was claimed.[23] Mr Walsh provided a similar summary of the documents in respect of which confidentiality had been claimed, describing them as falling into seven categories:[24] board papers; documents revealing cementitious product pricing information for premix customers (since 1 January 2018[25]), mining customers and ICL; cement supply agreements with customers; documents concerning market or competitive analyses; documents with details of the importation of cementitious products by ABCL (including contracts with suppliers and information about shipping costs and the like); tenders for major projects; and manufacturing and production data, including costs of production, for various of ABCL’s facilities.
[23] 1 Miller at [19]ff.
[24] 14 Walsh at [155].
[25] With this date selected on the basis that it was the date beyond which information was relevant to prices in the present market, and because it was the approximate date upon which the respondents’ strategy changed (with Hallett and SAPCC commencing to import cementitious products into South Australia and making direct sales to premix customers): 2 Miller at [77].
Whilst the respondents did not seek access to board papers as part of the present application, we understand the variation to the existing confidentiality regime sought by the respondents to contemplate access to documents falling within the balance of the categories listed above.
Mr Miller explained that while the inclusion of pricing information in the disputed documents was significant, the issues of commercial sensitivity and confidentiality went beyond this. He explained that the disputed documents contained information for each individual customer such as product type, product quantities, product make-up and specifications, rebates and discounts, and the pricing differential between products. They also contained information relating to ABCL’s pricing and tender strategies more generally, including its ability to bundle and supply materials with other members of the Adbri group for projects.[26]
[26] 2 Miller at [11], [33]-[35].
Mr Miller’s evidence was that the disputed documents contained information that was not only commercially sensitive and confidential to ABCL (and, in many cases, to its customers), but also of real commercial significance and value given what he described as the fierce trade rivalry between the two groups.
Mr Miller emphasised that Messrs Pickard, Hosking and Salisbury were the commercial decision makers of the Hallett group, and that, once possessed of the confidential information of ABCL (and its customers), it could not be quarantined from the decision making of the Hallett group.[27] He said that giving these men access to the disputed documents would allow the Hallett group great insight into ABCL’s commercial practices, relationships and overall competitive strategy, and thereby improve its ability to compete with ABCL and the Adbri group.[28]
The respondents’ evidence
[27] 1 Miller at [13].
[28] 2 Miller at [12].
The affidavits of Mr Brennan and Ms Robinson describe in some detail the difficulties they and their clients have been experiencing in the conduct of these proceedings as a result of the respondents’ solicitors not being able to provide their clients with the documents and information in respect of which confidentiality has been claimed by ABCL.
In 7 Brennan, 6 Robinson and 13 Robinson, Mr Brennan and Ms Robinson addressed the position prior to the tutoring exercise and some of the refinements of ABCL’s claim to confidentiality. 18 and 19 Robinson, on the other hand, addressed the position after these events.
Focusing first upon the position prior to these events, both Mr Brennan and Ms Robinson pointed out that, in addition to the difficulties experienced by the corporate respondents, it is significant that Mr Pickard and Mr Hosking are respondents in their personal capacities and facing serious allegations that they are personally liable as tortfeasors and conspirators against ABCL and its interests.[29]
[29] 7 Brennan at [53].
They pointed out that confidentiality had been claimed over thousands of items of discovery, and that, having regard to the fact that many items consist of bundles of documents, there had been claims of confidentiality over more than 90,000 documents.[30] They explained that the claims of confidentiality, in particular in relation to matters relevant to pricing, had hindered their ability to advise in relation to matters as fundamental as the possible quantum of ABCL’s loss claim, and the merits of Hallett’s own cross claim (both as to liability and quantum).[31]
[30] 7 Brennan at [54]; 13 Robinson at [253].
[31] 7 Brennan at [58]; 13 Robinson at [254]-[256].
In elaborating upon the above, Ms Robinson explained the process by which Hallett’s amended cross claim had been drawn from information contained in the confidential documents containing pricing information. The documents relied upon included supply reports, invoices to customers, spreadsheets relating to customer adjustments, contracts between ABCL and its customers, adjustment notification forms, documents relating to prices for BHP (in particular, underpayments to BHP), documents relating to prices and rebates for Exact Mix, documents relating to Downer EDI prices, documents relating to prices and rebates for Oz Minerals, documents relating to pricing in relation to the Northern Connector project, and documents relating to pricing for several premix customers.[32]
[32] 13 Robinson [262], [271].
As a result of this heavy reliance upon documents and information over which confidentiality had been claimed, the respondents’ solicitors had not only been prevented from disclosing to their clients the material upon which the cross claim was based, but had also been confined to providing Hallett with a redacted version of its own cross claim. As such, they had been unable to properly advise their clients in relation to the cross claim.
Ms Robinson also noted the link between the cross claim and ABCL’s loss claim, given that the respondents’ defence to ABCL’s claim alleged that if ABCL suffered loss for which the defendants were liable, then such loss was to be calculated having regard to the proper interpretation of the most favoured customer term, which (for the reasons set out in the cross claim) had been consistently breached by ABCL.[33]
[33] 13 Robinson at [262]ff; referring to the Defence at [40.10].
As for ABCL’s loss claim, and the respondents’ defence of that claim, Ms Robinson explained the difficulties that had arisen given the reliance upon confidential information in the way the loss was formulated. The confidential information included not only pricing information (including in relation to ABCL’s arrangements with ICL), but also information as to other integers of the loss calculation such as ABCL’s production costs.
ABCL’s formulation of its loss is derived from an expert report prepared by Mr Morris.[34] The Morris report quantifies ABCL’s loss in the amount of approximately $19 million, inclusive of pre-judgment interest of $2.67 million through to 30 June 2022. Ms Robinson explained that, because that report is so heavily reliant upon information over which ABCL claims confidentiality, her clients have only been able to access a redacted version of the four page executive summary of that report; they had been prevented from accessing the body of the report and its appendices. The report itself is 43 pages in length, or 84 pages including appendices, and contains a significant amount of detail. Ms Robinson said that without access to the unredacted version of the Morris report, and the documents underpinning it, her clients were unable to understand how Morris had arrived at his opinion, and unable to make informed decisions about the strengths and weaknesses of ABCL’s loss claim.[35]
[34] The structure of the loss claim is summarised at paragraph 2.4 of the Morris report.
[35] 6 Robinson at [211]ff in relation to the original version of the Morris report (dated December 2021); 13 Robinson at [273]ff in relation to the supplementary Morris report (dated July 2022).

Mr Brennan and Ms Robinson also explained that the mechanics of the confidentiality regime had resulted in the conduct of the proceedings becoming very cumbersome and inefficient.[36] Not only were thousands of documents confidential or redacted, and unable to be shown to their clients, but also all affidavits (and other court documents) and correspondence needed to be reviewed for confidentiality, and redacted if appropriate, before they could be shown to their clients.
[36] 7 Brennan at [60]-[62]; 13 Robinson at [258]-[261].
Mr Brennan and Ms Robinson also pointed out that the CSA had been terminated by 30 April 2020 at the latest, with the result that documents during the relevant period (1 July 2014 to 30 April 2020) were becoming removed in their temporal relevance. The age of the documents, and the likelihood of expired contracts and regularly changing prices, suggested diminished commercial sensitivity as to their contents.[37]
[37] 7 Brennan [64], [76]; 13 Robinson at [257].
Focusing now on the position at the time the application was argued, in 18 Robinson, Ms Robinson described the tutoring exercise that was directed in October 2022, and the documentation that she had been able to provide Messrs Pickard, Hosking and Salisbury since that process had commenced. This included a further version of Hallett’s cross claim, which was still significantly redacted (essentially so as to remove references to the prices that it is alleged ABCL charged to other customers in breach of the most favoured customer term of the CSA).
Ms Robinson explained that without waiving privilege over her communications with her clients, she was limited in the detail she could give as to the difficulties she was continuing to encounter in conducting the proceedings without Messrs Pickard, Hosking and Salisbury having access to the documents in dispute, and the reasons why the tutoring exercise had not resolved these difficulties.
Ms Robinson then described the difficulties she was continuing to encounter. Whilst involving a significant degree of overlap with what had been set out in earlier affidavits, it is useful to note that her description included reference to the following difficulties.[38]
[38] See 18 Robinson at [128]. See also 7 Brennan at [52]-[59].
·Her clients were being deprived of the ability to make informed decisions regarding the progress of the litigation given that they were unable to view information which was of critical significance to the proceedings, including parts of the cross claim.
·Hallett’s solicitors have had to advance allegations in Hallett’s cross claim without being able to receive instructions on the substance of those allegations.
·The information contained in the documents to which access was sought was relevant to the claims being advanced against the respondents and on behalf of Hallett. Access was necessary to progress the matter with her clients having a proper understanding of: (i) the allegations advanced in the cross claim that ABCL breached the most favoured customer term by charging Hallett a higher price than was charged to other customers; (ii) the impact of the cross claim on the calculation of the loss claimed by ABCL in its claim (as a result of the respondents’ consequential allegation that any calculation of that loss must take account of the price Hallett should have been charged); and (iii) the manner in which ABCL’s loss claim was formulated, including the merits of that loss claim and the defences thereto.
·Ms Robinson remained constrained in her ability to advise her clients in relation to the proceedings, and the decisions necessary for their progress, without them having access to the information forming the foundation of ABCL’s loss claim and Hallett’s cross claim.
·It was particularly unfair that the respondents were not able to be apprised of the information necessary for them to make informed decisions as to progress of the litigation, given the scale and complexity of the litigation, and the extent of the costs being incurred.
·This unfairness included not being in a position to properly consider any potential settlement of the litigation. No alternative dispute resolution has been attempted, but Ms Robinson expected that this would occur before the matter progressed to trial. Her clients would not be able to meaningfully participate in this until apprised of the information to which access was being sought.
·Ms Robinson expected that, following resolution of some outstanding discovery issues, there would be orders for the respondents to file their expert evidence in relation to ABCL’s loss claim and Hallett’s cross claim. Without a variation to the confidentiality regime, the respondents’ solicitors would be required to undertake this significant and expensive task without the benefit of informed instructions from the respondents as to matters relevant to that task, including whether to embark on that task. And, without variation to the confidentiality regime, the respondents would not be able to access parts of any expert reports that were obtained. The respondents would thus remain prejudiced in their ability to understand the strength and quantum of the parties’ respective claims.
·Ms Robinson was concerned about the prejudice to her clients given the inherently technical nature of many of the documents to which access was sought, and the significance of a proper understanding of these documents to the decisions needing to be made in the conduct of the proceedings. She noted that the nominated executives had significant experience in the cement and concrete industry (being over 40 years, 20 years and 13 years in the case of Mr Pickard, Mr Hosking and Mr Salisbury respectively), and expected that their experience and knowledge (including regarding stock movements, record keeping processes and the operation of accounting and other systems), would give them an insight and understanding of technical issues beyond that of the respondents’ solicitors. Whilst some of these issues might be addressed through additional expert assistance, not only would this come at significant cost, it would not be a proper substitute for the respondents making their own informed decisions as to the progress of the litigation.
·It was important that representatives of the respondents have access to the information sought at this point in time, given not only the matters set out above, but also the fact that their consideration of that information might necessitate the need for further discovery or for amendments to the pleadings. It was important that any such matters be addressed well ahead of the trial.
·The sensitivity of the information to which access was sought ought to have diminished given the passage of time and change in circumstances.
As to why the tutoring exercise had not alleviated the significant prejudice she considered that her clients were experiencing, Ms Robinson explained:[39]
·The information provided by ABCL in respect of Jetcrete was not representative of the position in relation to the rest of the mining customers relevant to the proceedings. In particular, the prices charged to Jetcrete were typically higher than those charged to Hallett (and hence not suggestive of any breach of the most favoured customer term), whereas those charged to others (eg BHP, Exact Mix, Oz Minerals) were lower than those charged to Hallett.
·The tutoring exercise had not enabled the respondents’ solicitors to provide the respondents with the information underpinning the cross claim which was necessary for them to advise in relation to that claim, or indeed any of the other documents and information that remained confidential.
·The comparison price that underpins the operation of the most favoured customer term requires consideration of month by month prices charged by ABCL to other customers. Because the respondents’ solicitors were still constrained in not being able to disclose this detail to their clients, they could not disclose the prices alleged in the cross claim, or properly advise on the merits and quantification of the cross claim and ABCL’s loss claim.
·The contractual, pricing and rebate arrangements in place differ across the various customers and across time, such that an understanding of one does not necessarily inform in relation to other customers’ arrangements and the sometimes nuanced differences between their arrangements. Again, a proper understanding of the proceedings, and assessment of the merits and quantum of the claims, required access to, and an understanding of, information across all customers.
[39] 18 Robinson at [129]. See also 18 Robinson at [140]-[145].
Ms Robinson then set out a very lengthy and detailed analysis of ABCL’s arrangements with, and allegations in relation to, various of the mining customers and premix customers with a view to not only describing them, but also demonstrating the differences between customers and over time.[40] Ms Robinson’s analysis included reference to many of the instances in which claims for confidentiality had prevented the respondents’ solicitors from providing their clients with access to information, and hence properly advising their clients. Pertinent aspects of this affidavit material were included in appendices to the primary judge’s reasons. Whilst not attempting to summarise the detail of Ms Robinson’s analysis in these reasons, we have of course had regard to the entirety of it.
[40] 13 Robinson at [132]-[262].
We observe in passing that when describing the tutoring exercise in 18 Robinson, Ms Robinson at times appeared to misunderstand, or at least misdescribe, its purpose. She referred to the inability of the respondents’ solicitors to tutor their clients in relation to various matters, whereas the purpose of the exercise was for Messrs Pickard, Hosking and Salisbury to use the documents to which they were permitted access to tutor the respondents’ solicitors in how to interpret and understand those documents so as to enable those solicitors to better interpret and understand the balance of the confidential documents. However, the essential points she made in her evidence remain relevant (namely, that access to the further documents had not alleviated the prejudice relied upon, and in particular had not enabled the respondents’ solicitors to properly advise their clients in relation to either ABCL’s loss claim or the cross claim).
Responsive evidence from ABCL
In response to Ms Robinson’s evidence in 18 Robinson as to the difficulties the respondents’ solicitors were continuing to experience, even after the tutoring exercise and ABCL’s refinement of its claim for confidentiality, ABCL filed further affidavit evidence from Mr Walsh (16 Walsh) and Mr Miller (2 Miller).
In 16 Walsh, Mr Walsh explained the reason why ABCL had been prepared to provide access to certain documents in relation to ABCL’s arrangements with Jetcrete as part of the tutoring exercise.[41] The reason was essentially a diminished commercial sensitivity in those documents given that, in early 2018, Jetcrete had ceased taking supply from ABCL and indeed had started taking supply from SAPCC. ABCL had been supplying Oz Minerals’ mine at Prominent Hill through Jetcrete, but it was now doing so to Oz Minerals direct. Mr Walsh noted that this change in the arrangements concerning Jetcrete was an illustration of the competitive nature of the industry.
[41] 16 Walsh at [88]-[90]. See also 2 Miller at [39]ff. The respondents were initially provided with Jetcrete documents dating from 1 July 2014 through to 30 June 2016; however, they were subsequently given access to those documents up to 1 January 2018.
In response to the suggestion that the tutoring exercise had not alleviated the respondents’ difficulties, Mr Walsh said that the ABCL record keeping systems applied consistently across ABCL’s various customers. He suggested that this consistency meant that the tutoring exercise in relation to the Jetcrete documents should have assisted the respondents’ solicitors to understand the balance of the customer documentation.[42]
[42] 16 Walsh at [86]-[87], [107].
Mr Walsh also said that, in his experience, clients did not need to, and generally did not, understand the granular detail of the evidence and expert reports in their litigation. It was generally sufficient that they have some general understanding of the matters in issue, and otherwise rely upon their advisers to be across the detail.[43]
[43] 16 Walsh at [107].
Mr Walsh accepted that the confidentiality regime had caused some inconvenience and inefficiency in the conduct of the proceedings. However, in his view, these difficulties and inconvenience had not made the progress of the matter unworkable, and were in any event being experienced by both parties.[44]
[44] 16 Walsh at [107].
Mr Walsh made reference to what he considered to be inconsistency on the part of the respondents given that they continued to maintain confidentiality over a number of their own discovered documents.[45] He also explained that Hallett had invoked the audit provisions under the CSA back in 2018, and had agreed to a confidentiality regime by which that process could be carried out. However, the process was abandoned after difficulties in relation to a potential conflict of interest on the part of the auditor.[46]
[45] 16 Walsh at [91]-[94].
[46] 16 Walsh at [95]-[106].
Turning to Mr Miller’s responsive evidence, in 2 Miller he reiterated several of the matters he had mentioned in 1 Miller as to the commercial rivalry between the Adbri group and the Hallett group. He then responded in some detail to the matters raised in 18 Robinson as to the difficulties still being encountered by the respondents’ solicitors in properly conducting the litigation and advising their clients, even after the tutoring exercise and ABCL’s refinement of its claims for confidentiality.
Mr Miller dealt first with the mining customers.[47] He explained the nature and sensitivity of the information relevant to those customers in respect of which access was opposed. He did so on a customer by customer basis. He then addressed the information sought to be protected in respect of ABCL’s premix customers, again dealing with several customers individually.[48]
[47] 2 Miller at [18]-[75].
[48] 2 Miller at [76]-[93].
Legal principles governing claims of confidentiality
As the primary judge observed in his reasons, the legal principles governing claims of confidentiality in civil litigation are not in dispute.[49] His Honour included a version of the following summary of those principles taken from the reasons of Elliott J in Cargill Australia Ltd v Viterra Malt Pty Ltd:[50]
[49] Reasons at [38].
[50] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321 at [21] (Elliott J).
1.A party to litigation generally has a right to have access to documents relevant to the issues in the proceeding. This is particularly so when it is a defendant seeking access to documents from a plaintiff who has invoked the jurisdiction of the court.[51]
2.Confidentiality is not normally a sufficient reason to deny inspection of discovered material. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection for the party producing them. However, where there is a trade rivalry between the parties, other considerations arise.[52]
3.The onus lies on the party seeking to impose restrictions to demonstrate the appropriateness of those restrictions.[53]
4.In relation to whether or not access to confidential documents should be granted, the factors to be addressed are as follows.[54]
(a)    The degree of relevance of the document or documents.
(b)    The extent to which the documents are confidential …
(c)    The use to which the information may be put once it is known …
(d)    The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings.
(e)    Any other matters relevant to the due administration of justice …
[51] NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 at [8] (Brereton J).
[52] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38.6 (Hayne JA).
[53] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17) [2018] VSC 750 at [49]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478 at [17]; NAK Australia v Starkey Consulting Pty Ltd [2008] NSWSC 1138 at [8] (Brereton J). See also AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 at [10] (Besanko J), citing Alpharm Pty Ltd v Lundbeck Australia Pty Ltd [2006] FCA 1358 at [17] (Lindgren).
[54] IOOF Holdings Ltd v Maurice Blackburn Pty Ltd (No 2) [2016] VSC 594 at [10].
Restated in more general terms, when considering whether to permit access to information in discovered documents which is said to be confidential, the court will have regard to matters including the sensitivity of the information said to be confidential, the forensic significance of that information to the litigation, the risk and degree of harm to the party claiming confidentiality if access were to be permitted, and the risk of prejudice and injustice to the party seeking access if access were to be refused (or a confidentiality regime imposed).[55]
[55] Fonterra Brands Australia Pty Ltd v Bega Cheese Limited [2018] VSC 471 at [24] (Daly AsJ).
The primary judge explained that, in applying these principles, the court is engaged in a balancing exercise between the interests of the party seeking production, and the interests of the party who has been compelled to discover a document or documents. The ultimate question is what is necessary for the attainment of justice. His Honour added that consideration of the appropriateness of any confidentiality regime or restrictions must be assessed as at the particular time the issue is raised for determination, so as to ensure that the regime is in the interests of justice based on the particular circumstances extant from time to time.[56]
[56] Reasons at [38].
In emphasising the importance of its claim of confidentiality as a trade rival of the respondent companies, ABCL relied upon the reasons of Hayne JA in Mobil Oil Australia Ltd v Guina Developments Pty Ltd[57] (Mobil Oil). In order to address ABCL’s submissions in reliance upon this case (see later in these reasons), it is appropriate to summarise the case in some detail.
[57] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.
The defendant (Roads Corporation, sometimes known as VicRoads) called for tenders for the construction and operation of a service centre alongside a freeway. It chose Mobil Oil Australia and McDonald’s Australia Ltd to carry out the work. The plaintiff (Guina Developments Pty Ltd) was an unsuccessful tenderer and instituted proceedings against the defendant alleging that it had evaluated the tenders using criteria other than those it had represented it would use.
The defendant’s discovery included three documents said to contain confidential information of the third party successful tenderers, Mobil and McDonald’s. The documents were a financial proposal submitted by Mobil and McDonald’s as part of the tender process, and two further documents prepared by the defendant but said to contain material derived from that financial proposal. Access to these documents was opposed on the basis that they contained information that was confidential, or commercially sensitive, to Mobil and McDonald’s. It was said that if the plaintiff were permitted to inspect the documents, then it could infer the rates of net return that the third party tenderers expected to receive from the project, and hence determine the rate at which they would be prepared to bid for future sites (their so-called ‘hurdle rate’).

At first instance, a master ordered inspection of the documents, despite the claim of confidentiality. The defendant appealed this decision to a single judge, and Mobil and McDonald’s were granted leave to intervene and support the appeal given their interest in the claim of confidentiality. The single judge allowed the appeal, but nevertheless made orders permitting inspection by a nominated representative of the plaintiff (its principal, Mr Guina), upon his filing appropriate undertakings confining his disclosure of the contents of the relevant documents to communications with the plaintiff’s legal advisors and expert accountant.
Mobil and McDonald’s appealed to the Court of Appeal, contending that the single judge erred in permitting inspection of their commercially sensitive information by a representative of a trade rival.
The Court of Appeal ultimately allowed the appeal on the basis that the single judge erred in granting access without first inspecting the documents so as to determine the existence and extent of the asserted confidentiality. The matter was remitted for the judge to inspect the documents and determine whether the claimed confidentiality outweighed the plaintiff’s interest in having access to the documents, and hence whether it was appropriate for the action to continue without the documents being revealed beyond the plaintiff’s legal advisers and nominated experts.
In analysing the issues on appeal, Hayne JA (with whom Winneke P and Phillips JA agreed) summarised the relevant legal principles in a manner which emphasised the need to strike a balance between a party’s ordinary entitlement to discovery and inspection of all relevant documents, and the desirability of protecting an entity’s confidential, or commercially sensitive, information vis-à-vis its trade rivals. His Honour said:[58]
While it may be readily accepted that a party is ordinarily entitled to discovery and inspection of all discoverable documents in the possession or control of the opposite party (save those for which a valid claim for privilege from production is claimed) it is important to bear steadily in mind that discovery is but a tool to be used in the pursuit of justice and that the right to discovery and inspection is not without its limits. The first and most obvious limit is that a party does not have a right to inspect documents that are discovered if there is a valid legal claim to privilege from production (as e.g. on the grounds of legal professional privilege). Secondly, because the law recognises that the assertion of compulsive power requiring production must be balanced against the needs of justice, a party inspecting the documents of the opposite party may not use them except for the purposes of the action in which discovery is made.
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. 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.
Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?
[58] Mobil Oil at 38 (Hayne JA, Winneke P and Phillips JA agreeing).
His Honour later added:[59]
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 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.
[59] Mobil Oil at 39-40 (Hayne JA, Winneke P and Phillips JA agreeing).
Hayne JA’s application of these principles in the balance of his reasons revealed several matters of significance.
The first was that the claim of confidentiality related to the commercially sensitive information of third parties to the litigation; that is, the successful tenderers, Mobil and McDonald’s. They had provided the relevant information to the defendant pursuant to the tender on the express basis that it would be kept confidential. The claim of confidentiality was confined to three documents discovered by the defendant. We have earlier summarised the nature of the sensitive information those documents were said to disclose.
Secondly, Hayne JA emphasised that because the essence of the plaintiff’s claim was a complaint that the defendant gave undue weight to the return which it would obtain, it followed that the way in which Mobil and McDonald’s may have arrived at the returns they would make was not directly in issue. As such, there seemed little reason for concluding that the plaintiff needed access to any part of the financial proposal other than the part which revealed the proposed return to the defendant. And it was doubtful whether any reference to the financial data supplied by Mobil and McDonald’s in the other two documents would bear on the case the plaintiff sought to make.[60]
[60] Mobil Oil at 39 (Hayne JA, Winneke P and Phillips JA agreeing).
Thirdly, and relatedly, it was in these circumstances that it was held that the disputed documents ought to have been inspected to determine the extent to which they contained confidential or sensitive information, and to determine whether an appropriate balance could be struck by permitting disclosure of parts of those documents to not only the plaintiff’s legal advisers and experts, but also its principal (upon appropriate terms).[61]
[61] Mobil Oil at 40 (Hayne JA, Winneke P and Phillips JA agreeing).
Fourthly, it is apparent that Hayne JA was influenced by the timing of the application for access. In the second of the passages quoted above from Hayne JA’s reasons, his Honour said that any confidentiality regime “may need to be reviewed as the matter progresses to trial or as the trial itself proceeds”.[62] In the concluding passages of his reasons, Hayne JA referred again to the issue being whether it was necessary “now” and “at this [early] stage of the proceedings” for the principal of the plaintiff to have access to the confidential or sensitive information.[63]
[62] Mobil Oil at 40 (Hayne JA, Winneke P and Phillips JA agreeing).
[63] Mobil Oil at 40-41 (Hayne JA, Winneke P and Phillips JA agreeing).
It was in this context that Hayne JA concluded that, without inspecting the documents, it was not possible to say what order should have been made. For reasons explained later, it is relevant that his Honour considered that the appellants had therefore established error in the sense contemplated by House v The King:[64]
For these reasons, I consider that the order made below was attended by significant error and should be set aside, notwithstanding that the decision involved an exercise of judicial discretion on a matter of practice, thus attracting the principles found in House v R (1936) 55 CLR 499 at 504-5. (See also Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23 at 26.)
[64] Mobil Oil at 41 (Hayne JA, Winneke P and Phillips JA agreeing).
The appeal was allowed, the orders below set aside, and the matter remitted for fresh hearing and determination.[65]
[65] Mobil Oil at 41 (Hayne JA, Winneke P and Phillips JA agreeing).
Whilst the Court of Appeal in Mobil Oil did not ultimately determine the issue of access, ABCL emphasised that courts have been prepared to preclude parties from accessing the confidential documents and information of their trade rivals.[66] In so doing they have relied upon the relevance of the confidential documents to the commercial interests of the party seeking access, and the consequential risk of the disclosure or use of the confidential information which they contain. Even if the use of such information occurs inadvertently or subconsciously, the potential for harm to the commercial interest of the party claiming confidentiality is the same.[67]
[66] See, for example Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [122]-[140] (Kyrou and McLeish JJA).
[67] Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [131] (Kyrou and McLeish JJA).
Put another way, the existence and nature of the trade rivalry between the parties will be relevant to the magnitude of the risk of loss of confidentiality and the potential prejudice resulting from such loss.[68]
[68] Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [139] (Kyrou and McLeish JJA).
While the protection of an entity’s private interest in maintaining confidentiality over its commercially sensitive information vis-à-vis a trade rival is undoubtedly an important consideration, other authorities have emphasised the need to balance this interest against not only the public interest in open litigation, but also a party’s right to participate properly in their own litigation. The latter may be seen as an aspect of the principles of procedural fairness. Whilst the public interest in open litigation and procedural fairness are neither fixed nor absolute in their application and content,[69] they are important considerations.
[69] HT v The Queen (2019) 269 CLR 403 at [43]-[46] (Kiefel CJ, Bell and Keane JJ).
For example, in Warner-Lambert Co v Glaxo Laboratories Ltd,[70] the English Court of Appeal was concerned with a claim of confidentiality in the context of proceedings between two competitors “in a highly competitive market”. The Court sought to balance the interest of one party in protecting its confidential or sensitive information against the interest of the other party in properly participating in, and addressing, the litigation in which it was involved. In emphasising the importance of the latter, Buckley LJ referred to the concern “to ensure that the plaintiff company, in the person of some responsible officer, should have an opportunity not only of being advised by technical experts and legal advisers, but of knowing the facts on which that advice was founded, so as to be able to form a personal judgment on how to deal with the action”.[71] His Lordship added that there are “obviously strong arguments in favour of a party to litigation being enabled so far as possible to chart his own course in the light of professional advice”.[72] His Lordship explained that major litigation decisions, including whether to continue or abandon the action, should be made by the company, not by its legal advisers, much less its expert advisers.[73]
[70] Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354.
[71] Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at 359 (Buckley LJ, Russell and Orr LJJ agreeing).
[72] Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at 359-360 (Buckley LJ, Russell and Orr LJJ agreeing).
[73] Warner-Lambert Co v Glaxo Laboratories Ltd [1975] RPC 354 at 360-361 (Buckley LJ, Russell and Orr LJJ agreeing).
In Idoport Pty Ltd v National Australia Bank Ltd,[74] the issue was whether officers of the defendant bank, including the personal defendants, should be entitled to access information in the plaintiffs’ statements in respect of which there was a claim for confidentiality. Rolfe J declined to impose the confidentiality regime sought by the plaintiff on the basis that it was contrary to the principles of procedural fairness, and the defendants’ right to be apprised of the case against them.[75]
[74] Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 686.
[75] Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 686 at [82]-[85] (Rolfe J).
In so holding, his Honour relied upon Warner-Lambert Co v Glaxo Laboratories Ltd, and in particular the passages from the reasons of Buckley LJ referred to above. His Honour also relied upon the reasoning of White J in Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd[76] to the effect that it is “highly undesirable that litigation solicitors and counsel should be left without the benefit of instructions from the client, particularly in a situation … where the issues are … subtle”.
[76] Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37 at 43.
Finally, in Portal Software International Pty Ltd v Bodsworth,[77] Brereton J permitted a variation to a confidentiality regime to permit access to the personal defendant (rather than just his legal advisers). In reasoning to this conclusion, his Honour acknowledged the importance of parties having access to information that is likely to play a substantial role in the case against them:[78]
In more recent times, it has become rarer that the party personally is excluded from knowledge, because courts take the view that decisions such as whether to continue or abandon litigation should be made by the party personally on advice, rather than by the advisers (Warner-Lambert Co v Glaxo Laboratories Limited [1975] RPC 354). The difficulties which may arise from imposing a restriction on the ability of lawyers to speak to their clients and disclose to clients information produced to them has been adverted to repeatedly. In Commonwealth v Northern Land Council (1993) 176 CLR 604, Toohey J observed that inspection by a party’s legal representatives, subject to an undertaking of non-disclosure to the party, would often place the legal representatives in a position of difficulty vis-à-vis their client, and even tie their hands in the further conduct of the litigation. The difficulties which may arise when an undertaking of non-disclosure (by legal representatives) has been given as a condition of access were also referred to by Wilcox J in Kanthal (Australia) Pty Ltd v Minister for Industry Technology and Commerce (1987) 14 FCR 90, 96-97, but in that case his Honour nonetheless made an order limiting access to the legal representatives only. Mr White referred me to observations to like effect made in this Court by Einstein J in Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 648, [30]-[31], and by Heydon JA, as his Honour then was, in the Court of Appeal, in Sydney Organising Committee for the Olympic Games v Reebok International [2000] NSWSC 85, [9].
Ultimately, the effect of these authorities is best encapsulated in the judgment of Aldous J in Roussel Uclaf v Imperial Chemical Industries plc [1990] FSR 25, 29-30, as follows:
Each case has to be decided on its own facts and the broad principle must be that the Court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The object to be achieved is that the applicant should have as full a degree of disclosure as would be consistent with adequate protection of the secret. In so doing, the Court will be careful not to expose a party to any unnecessary risk of its trade secrets leaking to or being used by competitors. What is necessary or unnecessary will depend upon the nature of the secret, the position of the parties and the extent of the disclosure ordered. However, it would be exceptional to prevent a party from access to information which would play a substantial part in the case, as such would mean that the party would be unable to hear a substantial part of the case, would be unable to understand the reasons for the advice given to him, and in some cases the reasons for the judgment. Thus what disclosure is necessary entails not only practical matters arising in the conduct of a case but also the general position that a party should know the case he has to meet, should hear matters given in evidence and understand the reasons for the judgment.
[77] Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115.
[78] Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [44]-[45] (Brereton J).
In permitting access to the personal defendant in that case, Brereton J also emphasised two further matters. The first was that a stronger case was required for restricting access to sensitive information of another party to the litigation (particularly where that other party is the plaintiff invoking the jurisdiction of the Court), as opposed to where access is sought to sensitive information of a third party.[79] The second was that, whereas access to sensitive information might be restricted without significant prejudice early in proceedings, the potential injustice in restricting access will often increase as the proceedings progress and approach trial.[80]
[79] Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [41], [56] (Brereton J).
[80] Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [41], [56] (Brereton J).
The primary judge’s reasons
The primary judge commenced his reasons by identifying the parties and outlining in broad terms the issues in the proceedings. His Honour then described the history of the confidentiality regime and the respondents’ application to vary that regime, including the documents to which access was being sought and the tutoring exercise.
The primary judge next addressed the respondents’ reasons for contending that they needed access to the relevant documents, and why the tutoring exercise had not alleviated the prejudice they were experiencing. His Honour did so by quoting at length from the relevant passages of 18 Robinson,[81] as summarised earlier in these reasons. His Honour then proceeded to address these matters in some greater detail by reference separately to the mining (or batching plant) customers and premix (or independent batching plant) customers. His reasons included appendices with further passages from 18 Robinson.[82] The primary judge also addressed ABCL’s loss claim in some additional detail, outlining the difficulties the respondents contended they were experiencing from not having access to relevant documents (including in relation to ABCL’s arrangements with ICL) or an unredacted version of the Morris report upon which ABCL’s formulation of its loss was based.
[81] 18 Robinson at [128]-[129].
[82] Being Appendix I (addressing the mining customers, by reference to extracts from 18 Robinson at [140]-[195]) and Appendix II (addressing the premix customers, by reference to extracts from 18 Robinson at [197]-[243]).

As for Mr Salisbury, the primary judge said that allowing access to him would not materially increase the risk of misuse of the information if both principals have access to it, and that it was likely to increase the efficient and expeditious progress of the proceedings.
ABCL challenges this aspect of the primary judge’s reasoning on the basis of the truism that the more people who access the confidential information, the greater the risk of it being remembered and disclosed or used to ABCL’s detriment.[120] However, the judge did not suggest there was no increase in risk associated with granting access to Mr Salisbury in addition to Messrs Pickard and Hosking. Whilst one might quibble with the judge’s reference to there being no material increase in risk, as opposed to, for example, no significant increase in risk, the point is that his Honour was not speaking in absolutes. His Honour was merely making the observation that there would be a limited incremental increase in risk associated with granting access to Mr Salisbury in circumstances where the two principals of the respondent companies were already to be granted access.
[120] Referring to Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478 at [18] (Elliott J).
None of the matters raised under this ground of appeal demonstrate error on the part of the primary judge.
Ground 5: reliance upon evidence from respondents’ solicitors
Ground 5 complains that the primary judge erred in accepting the evidence of the respondents’ solicitors both as to the degree of sensitivity of ABCL’s confidential information and the need for three senior executives to have access to that information (despite the tutoring exercise), in circumstances where those executives did not give evidence and Mr Miller of ABCL had given evidence as to the continued and real sensitivity and value of the confidential information in the documents to which access was sought.
We do not consider there to be any merit in the suggestion that the three senior executives ought to have given evidence as to their need to access ABCL’s confidential information. We accept that they may have been able to give some evidence of assistance on this topic. However, we do not think their failure to do so was a significant consideration. The solicitors were able, and probably better able given their expertise in conducting legal proceedings, to identify the matters in respect of which they were being prevented from providing appropriate advice and obtaining informed instructions, and the significance of these matters to the conduct of the proceedings. The senior executives, on the other hand, do not know, other than in general terms, what has been withheld from them. It would be inherently difficult for them to give evidence about the importance of that information. Further, having to this point been denied access to any detailed information as to ABCL’s arrangements with its customers on the grounds of confidentiality, the superior knowledge of the three senior executives as to the cement supply industry is unlikely to have been of any assistance in informing the Court as to why they needed access to the confidential documentation.
In support of a submission that the primary judge erred in accepting (or attaching any material weight to) the solicitors’ evidence as to the difficulties they are experiencing in the conduct of the proceedings, ABCL criticises the general and repetitive nature of that evidence, and what it contends are several shortcomings in that evidence.
ABCL criticises the generality of the evidence in support of Ms Robinson’s claim that the tutoring exercise has not alleviated the respondents’ difficulties. Whilst recognising that the generality was in part a function of the respondents’ decision not to waive legal professional privilege, ABCL argue that this was nevertheless a forensic decision by the respondents. ABCL note that the respondents were given access to the confidential documents relating to premix customers for the period 1 July 2014 to 31 December 2017, the mining customer Jetcrete from 1 July 2014 to 30 June 2016,[121] and a redacted version of the executive summary in the Morris report. ABCL contend that, in circumstances where ABCL’s customer billing services were consistently applied across all of its customers, and produced consistent documentation, the tutoring exercise ought to have been of significant benefit to the respondents.
[121] And subsequently through to 31 December 2017.
We do not understand Ms Robinson to have denied that the tutoring exercise provided any assistance to the respondents’ legal team in understanding the documentation produced by ABCL’s customer billing services. Whilst Ms Robinson did make the point that the information provided in respect of Jetcrete was not representative of the confidential material in respect of other mining clients, the gravamen of her evidence of ongoing difficulties was not related to an inability to understand the confidential documentation.[122]
[122] Albeit that she did maintain that the senior executives, through their greater knowledge and experience of the industry, may be able to bring additional insight and assistance.
Rather, the gravamen of Ms Robinson’s evidence – which the primary judge accepted and apparently attached significant weight to – was that, in circumstances where she remained unable to show her clients the confidential information, she was not able to properly advise them as to the strengths and weaknesses of Hallett’s cross claim, and the ABCL loss claim, and to obtain properly informed instructions in relation to the same.
ABCL countered this anticipated response by contending that the claimed difficulty was somewhat illusory given that clients in litigation of this type would rarely consider the level of detail contained in the large volume of documents over which confidentiality has been claimed. However, as the respondents point out, this submission is of limited significance once it is appreciated that the claim of confidentiality over the detail has prevented the respondents’ solicitors from providing their clients with any meaningful summary or synopsis of the effect of that documentation. Even the prices and calculations contained in the cross claim, and Mr Morris’ formulation of ABCL’s loss claim, have been redacted.
In support of its complaint about the generality of the respondents’ evidence, ABCL pointed to the essentially ‘all or nothing’ nature of the respondents’ position; noting that the respondents sought access to a huge number of documents, without any differentiation between those documents on the grounds of their importance to their ability to conduct the proceedings.
The first response to this is that, as the respondents’ point out, this is not – or at least not entirely – the respondents’ difficulty. As noted in the earlier summary of the authorities, the party claiming confidentiality as a basis for resisting the ordinary obligations to provide access to relevant documentation carries the onus of making good the claim for confidentiality.[123] The position is perhaps more complicated, or nuanced, in circumstances where there is an existing confidentiality regime in place, and the respondents are seeking a variation to that regime. However, it is not at all clear that the failure to differentiate between documents, or categories of documents, is entirely the respondents’ problem.
[123] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321 at [21.3] and the authorities appearing in the footnote to that paragraph.
The second and more fundamental response is that, regardless of matters of onus, both parties adopted a largely ‘all or nothing’ approach to the application. While both parties, and ABCL in particular, did address customer-specific considerations in their evidence, it is fair to say that they did so more by way of illustration of their overall positions as to whether access should be permitted, rather than in an attempt to enable the primary judge to make orders that differentiated between documents or categories of documents.
In an attempt to undermine the evidence of the respondents’ solicitors, ABCL contend that it is noteworthy that the confidentiality regime applies both ways, and that ABCL has been able to progress the proceedings without any material dispensation from the confidentiality regime. We do not think this submission carries much weight. It would seem that ABCL’s requests for access to the respondents’ confidential documents by its nominated representatives have been granted, although the evidence does not reveal the number or extent of these requests. It may be that ABCL’s apparent ability to conduct the proceedings without the difficulties that the respondents claim to be experiencing is simply a function of the matters in issue in these proceedings. As the issues between the parties focus more upon the prices charged, and costs incurred, by ABCL, it is perhaps unsurprising that the confidentiality regime has caused the respondents greater difficulty. In any event, the extent to which ABCL is prepared to proceed without access to confidential information is a matter for it.
ABCL also complains that the primary judge accepted the “purportedly expert but unqualified and unsupported” evidence of the respondents’ solicitors as to the diminished confidentiality in ABCL’s confidential material, despite evidence to the contrary from Mr Miller. In support of this complaint, ABCL relies upon the following passage from the primary judge’s reasons:[124]
The confidentiality regime has been in place since April 2020. The documents over which commercial confidentiality is claimed cover the period 2014 to 2020. Changes in the contractual arrangements between ABCL and its customers, during and after that period, are set out in 18 Robinson. I attach, as Appendix III, extracts from Ms Robinson’s affidavit which set out those changes.
[124] Reasons at [37].
As ABCL points out, in his second affidavit (2 Miller), Mr Miller gave evidence in response to the suggestion of diminished confidentiality. He explained, by reference to some individual customers (particularly mining customers), why the information in respect of which access was opposed remained commercially sensitive. The primary judge did not refer to this evidence from Mr Miller.
Insofar as ABCL contends that the primary judge ought not to have received Ms Robinson’s evidence as to the changes in market conditions, no objection was taken below. It is too late for that objection to be taken now. In any event, Ms Robinson was not purporting to give expert opinion evidence as to market conditions. Her evidence consisted primarily of a collation of documentary evidence, including market announcements by the Adbri group, to demonstrate that there had been changes in customer arrangements and market conditions. This evidence was capable of supporting a contention that, because those arrangements and conditions had changed since 2020, it was inherently likely that pricing information from the period 2014 to 2020 would be of diminished relevance and sensitivity.
It is to be acknowledged that Mr Miller’s evidence was relevant to the weight to be attached to Ms Robinson’s evidence summarised above, and any inference to be drawn from it. By reference to some of the individual customer arrangements, particularly the mining customers, Mr Miller explained how information from that earlier time period had a potentially ongoing relevance and sensitivity. Whilst the primary judge did include reference to some of Mr Miller’s earlier evidence in his appendix containing extracts from Ms Robinson’s evidence, it would have been better had he included reference to the relevant passages from Miller 2 in his reasons.
However, we do not think the judge’s failure to refer to this evidence is indicative of error. We say that for two reasons. The first is that it cannot be inferred from the failure to mention this evidence that the judge did not have regard to it. In the case of an interlocutory application such as the present, particularly where the evidence is as voluminous as it was here, a judge’s reasons are not required or expected to expressly address all matters of detail. The second is that we do not think that Mr Miller’s evidence is inconsistent with Ms Robinson’s evidence, let alone the judge’s reasoning. The fact remains that there have been changes in the relevant customer arrangements and market conditions, and that pricing information and the like from 2014 to 2020 is less relevant now than it was at an earlier point in time. Whilst Mr Miller’s evidence serves to highlight the ongoing relevance and sensitivity of some of that information, particularly in respect of ABCL’s mining customers, the point made remains a valid one.
The complaints made in connection with Ground 5 must be rejected.
Ground 6: necessity for the conduct of the litigation
In Ground 6, ABCL contends that the primary judge erred in holding, in effect, that the only way the litigation could be adequately conducted was by granting access to ABCL’s confidential information to the three nominated senior executives. In challenging this holding, ABCL pointed to the following matters:
·the respondents’ lawyers and (any) experts have access to all of ABCL’s discovered documents, including the confidential documents;
·the respondents’ lawyers have also had the benefit of the tutoring exercise;
·the respondents can access all of ABCL’s non-confidential discovered documents, while the three nominated executives can access some of ABCL’s confidential materials (being the documents relating to the premix customers through to 1 January 2018, and the Jetcrete and Pybar documents);
·the respondents can access a redacted version of the pleadings, and a redacted version of the executive summary of the Morris report;
·the respondents have been able to file detailed pleadings on all aspects of the case; and
·the respondents have not provided evidence from any of the three executives explaining or justifying their need to access ABCL’s confidential documents.
The first point to make in response to the above is that the primary judge did not go so far as to hold that the only way the litigation could be adequately conducted was to grant the access sought. Rather, the judge held that the respondents faced significant difficulties in conducting the litigation, and that when balanced against all of the other relevant considerations, it was in the interests of justice that access be granted to the three nominated executives.
To the extent that ABCL submits that the considerations listed above contradict or undermine the judge’s finding that the respondents are experiencing difficulties in conducting the litigation, we do not accept this submission. As described in more detail earlier in these reasons, the confidential material is of significant, if not central, relevance to not only Hallett’s cross claim, but also ABCL’s loss claim. Whilst the respondents have been able to prepare and file detailed pleadings, they remain lawyers’ pleadings. The respondents themselves have not been able to access the information which underpins those pleadings. The respondents’ solicitors have not been able to provide advice in relation to the strength and weaknesses of the respondents’ case, at least not in a way that refers to or analyses the confidential material underpinning that case. Whilst the tutoring exercise was likely to have provided the respondents’ solicitors assistance in understanding some of the confidential material, it has not enabled the respondents’ solicitors to provide their clients with the confidential information underpinning their case, and hence to advise in relation to the same. We have earlier explained why it was sufficient that the respondents’ solicitors gave this evidence; we do not think it was necessary for the nominated senior executives of the respondents to do so.
Whilst the respondents’ solicitors appear to have been able to advance the proceedings to this point in time, albeit with the inconvenience and inefficiencies described by Mr Brennan and Ms Robinson, their evidence is that they have not been able to attempt any resolution of the proceedings without their clients being in a position to make an informed assessment of the merits of their case. Nor can they finalise the respondents’ pleadings, or be confident that they have all the discovery they need, until they have the benefit of their clients’ informed assistance and instructions. As the primary judge emphasised, these matters take on a greater significance as the trial approaches. And in a matter of the scale and complexity of the present one, it can be said that the trial is approaching.
Finally, we mention that even if the respondents’ solicitors could continue to make litigation decisions on behalf of the respondents, that is not the issue. As the authorities mentioned earlier in these reasons highlight, it is unsatisfactory, if not inappropriate, that litigation be conducted on the basis of decisions made by lawyers, without the benefit of properly informed instructions.
Ground 1: primary judge’s order unreasonable or plainly unjust
Ground 1 involves an overarching complaint that the primary judge erred in granting Messrs Pickard, Hosking and Salisbury access to ABCL’s confidential documents. As a complaint of outcome error in respect of a discretionary decision made by the primary judge, it is not enough to persuade this Court that it may, or even would, have exercised the discretion differently. In order to succeed on the appeal, ABCL must establish that the judge’s exercise of his discretion was unreasonable or plainly unjust; that it was a decision not reasonably available on the evidence.
Further, in considering a challenge to the reasonableness of a discretionary decision made by reference to competing considerations arising in the management of complex litigation, it is important that this Court pay due deference to the managing judge’s superior understanding of the issues in the case, and of the considerations relevant to the exercise of his or her discretion.[125]
[125] See, for example, Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [4], [49] (Whelan JA).
We have described earlier the scale, complexity and detail of the present litigation, and indeed the evidence and other considerations relevant to determining whether, and on what terms, the existing confidentiality regime should be varied. The primary judge has had the advantage of managing these proceedings for over two years, and through the course of a significant period of interlocutory disputation and progress. He has had the advantage of having acquired an understanding of the issues in dispute between the parties as they emerged through various iterations of the pleadings, and more recently through the gradual movement in the parties’ positions in relation to the issue of confidentiality. The primary judge has undoubtedly acquired a deeper understanding of the complexities and detail of these proceedings than this Court could hope to acquire from its consideration of the material placed before it for the purposes of the appeal. In summary, the advantage the primary judge has had in weighing the competing interests relevant to resolution of the application to vary the confidentiality regime is a significant consideration in determining whether error has been established.
Before returning to the breadth of the primary judge’s discretion, it is appropriate to canvass briefly the considerations relevant to the exercise of that discretion. In so doing, we are not intending to be comprehensive; what follows should be read in light of our earlier references to the pleadings, the evidence and the authorities, as well as the matters canvassed in the context of our consideration of the other grounds of appeal.

The starting point is that parties to litigation generally have a right to access documents relevant to the issues in the proceedings in which they are involved.[126] Here, not only are Hallett and SAPCC parties to litigation, but also Mr Pickard and Mr Hosking are parties in their own right.
[126] Mobile Oil at 38 (Hayne JA, Winneke P and Phillips JA agreeing).
It is relevant that the party resisting access, ABCL, is the party who brought the proceedings and hence invoked the jurisdiction of the Court.[127] That said, the weight to be attached to this consideration must be tempered somewhat by the fact that many of the confidential documents to which access has been sought relate to allegations made by Hallett in its cross claim (albeit also picked up in its defence to ABCL’s claim); and by the fact that third party customers also have an interest in protecting the confidentiality in some of the documents in dispute.
[127] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321 at [21.1] (Elliott J); Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [122] (Kyrou and McLeish JJA); NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 at [8] (Brereton J); Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [41], [56] (Brereton J).
Confidentiality is not ordinarily a sufficient reason to refuse access. In most cases, the parties’ implied undertaking that the documents not be used except for the purposes of the litigation concerned will be a sufficient protection.[128]
[128] Mobil Oil at 38 (Hayne JA, Winneke P and Phillips JA agreeing); Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321 at [21.2] (Elliott J).
It is to be acknowledged, however, that in cases where the parties are trade rivals, additional considerations may arise.[129] A particular risk of the disclosure or misuse of the confidential information arises in those cases. There is a risk that, once seen by a trade rival, the information may not be forgotten and may not be able to be quarantined from the rival’s commercial decision making. Even if the use of the confidential information occurs subconsciously, it may nevertheless occasion significant commercial prejudice to the party resisting access.[130]
[129] Mobil Oil at 38 (Hayne JA, Winneke P and Phillips JA agreeing); Cargill Australia Ltd v Viterra Malt Pty Ltd (No 27) [2021] VSC 321 at [21.2] (Elliott J).
[130] Mobil Oil at 38 (Hayne JA, Winneke P and Phillips JA agreeing); Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [131], [139] (Kyron and McLeish JJA).
In the present case, there is undoubtedly an intense commercial rivalry between the parties. As described earlier in these reasons, they compete in relation to both the premix customers and the mining clients. ABCL is also concerned about the likely increase in the Hallett’s capacity to compete with it, particularly in relation to its very valuable mining clients, as a result of the Hallett group’s recent investments in infrastructure at Port Adelaide and Port Augusta.
ABCL also emphasises that the persons nominated to access its confidential information are not only the principals and key office holders of the corporate respondents, but also persons involved in, if not primarily responsible for, the commercial decision making of those entities. The identity of the nominated persons thus tends to increase the risk of the misuse of the confidential information relative to, for example, a case where access could be confined to in-house lawyers who might be both removed from the commercial decision making of the relevant company, and exposed to professional sanction for any breach of confidentiality undertakings that they give.[131]
[131] Cargill Australia Pty Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 at [128]-[132] (Kyrou and McLeish JJA).
On the other hand, it is relevant that the commercial knowledge and experience of the nominated persons tends to support the respondents’ contention that their informed input in the conduct of the litigation is likely to be of material assistance to the respondents’ solicitors.
It is important to understand the nature and extent of the information over which confidentiality is claimed, and its forensic significance in the proceedings.
As to the information over which confidentiality is claimed, ABCL maintains a claim of confidentiality over many thousands of documents. The information which is sought to be protected is primarily related to its pricing vis-à-vis its customers other than Hallett (including both premix and mining customers), and its costs of production. However, as mentioned earlier, the claim of confidentiality extends beyond this to include a number of documents relating to its commercial arrangements with its customers (including its contracts and information about rebates, discounts, product mixes and the like) as well as other documents of strategic significance. ABCL’s evidence explains the commercial sensitivity and value of the documents and information which it seeks to protect. That evidence is largely uncontested, and to be accepted. It is relevant that while the commercial sensitivity of some of the confidential material will have diminished given the time that has passed, for the reasons explained earlier, much remains commercially sensitive. ABCL is particularly concerned to protect information relating to its arrangements with its very valuable mining customers.
The volume and detail of the confidential information, and the conditions attached to the circumstances of any access to that information, mean that there will be limits upon the nominated executives’ capacity to recall most of the detail of that information. That said, there remains a risk that particular aspects of that information will resonate with, and be retained in the memories of, those executives.
In many cases, as in Mobil Oil, inspection of the documents in dispute by the judge making a decision as to access will be appropriate. However, given the nature and extent of the documents in dispute in the present case, it was accepted that this was neither necessary nor appropriate.[132]
[132] Reasons at [39], and not challenged on appeal.
Turning to the relevance, or forensic significance, of the confidential information to the issues in the proceedings, this has again been addressed in detail earlier in these reasons. In short, the information is central to Hallett’s allegations of numerous breaches of the most favoured customer term under the CSA over the period from July 2014 through to April 2020. Given that these allegations are picked up in the respondents’ defence to ABCL’s loss claim, the confidential information is also relevant to that claim. In addition to this, ABCL’s formulation of its loss in that claim (as reflected in the Morris report) draws heavily upon confidential information, such as in relation to ABCL’s production costs and its arrangements with ICL. The significance of the confidential information to the proceedings is readily apparent from the extent of the redactions which have been necessary in the pleadings and the Morris report, as well as other court documents filed in connection with the present application, in order to protect that information.
As the primary judge correctly recognised, the circumstances of the present case are readily distinguishable from those that existed in Mobil Oil. The claim of confidentiality in Mobil Oil was made by third parties to the litigation, rather than an entity which is not only a party to the proceedings, but the party which first invoked the court’s jurisdiction. The claim related to only three documents, rather than the thousands of documents in issue in the present case. The information sought to be protected in Mobil Oil was not directly relevant to the matters in issue in the proceedings, and not necessary for the plaintiff to frame and plead its case, whereas the information sought to be protected in the present case is central to the pleaded allegations made by the parties. As a corollary of the above, the difficulties associated with conducting the proceedings without access to the disputed documents are far more significant and pervasive in the present case than they were in Mobil Oil.
The judge was entitled to accept the evidence of the respondents’ solicitors as to the nature and extent of the difficulties they have been experiencing in conducting the proceedings. As explained by those solicitors, and detailed earlier in these reasons, significant portions of the respondents’ pleadings – particularly Hallett’s cross claim – were ‘lawyers’ pleadings’; that is, drafted without the benefit of informed instructions from their clients. As the solicitors are not able to disclose to their clients much of the detail underpinning the allegations in ABCL’s loss claim and Hallett’s cross claim, they have not been able to provide proper advice in relation to the merits of those allegations. They have not been able to provide their clients with any detailed analysis of the strengths and weakness of those allegations. They have not even been able to show their clients unredacted versions of the pleadings or the Morris report. Despite the Morris report formulating ABCL’s loss in the amount of $19 million, the respondents have not been able to access the body of that report or any of its appendices. They have been confined to a redacted version of the executive summary of the report.
It follows from the above that the respondents have not been in a position to provide informed instructions in relation to the conduct of the proceedings generally. The above has also prevented them from engaging in any meaningful attempt to resolve the proceedings.
ABCL’s facilitation of the tutoring exercise suggested by the primary judge is a relevant consideration. Given the apparent consistency of ABCL’s record keeping across its various customers, it can be inferred that the exercise would have been of some assistance to the respondents’ solicitors. On the other hand, the primary judge was entitled to accept the evidence of the respondents’ solicitors that the exercise has not alleviated the prejudice flowing from the difficulties they have experienced in conducting the litigation. In circumstances where the difficulties summarised above relate primarily to the solicitors’ inability to disclose information to their clients, rather than their difficulty in understanding the documents underpinning the pleaded allegations, there would appear to be some inherent force in this evidence.
There is also some inherent force in the evidence of the respondents’ solicitors to the effect that the nature and extent of the confidentiality claim has caused significant inconvenience and inefficiency, and hence cost and delay, in the conduct of the proceedings. Their difficulties in providing advice to, and taking instructions from, their clients have been exacerbated by their need to pay constant and careful attention to the way in which information is communicated to their clients, and the redaction of correspondence, pleadings, affidavits and other court documents before they can be shown to their clients.
The significance of the difficulties that the respondents’ solicitors have been experiencing in the conduct of the proceedings must be assessed in light of the authorities (referred to earlier) which have appropriately emphasised the importance of the parties to litigation being fully informed and making the critical litigation decisions themselves, and the related undesirability of litigation lawyers being left without the benefit of informed instructions. That is particularly so in the case of litigation such as the present, where the issues in dispute have a degree of complexity and subtlety about them.
It may be accepted that the parties themselves do not always, and perhaps do not ordinarily, immerse themselves in the detail of the discovered documents and other aspects of the proceedings. They will often rely upon their solicitors and other experts to be across that detail, relying upon those solicitors and experts to ensure that they are advised as to the effect and significance of that detail. The difficulty in the present case, however, is that the solicitors have not been able to provide that advice without revealing the confidential detail. There is also a real prospect that the commercial knowledge and experience of their clients will bring a greater appreciation of the significance of some of that detail.
A significant consideration in the present matter is the timing of the application. There does not appear to be any significant dispute that, at some point in the litigation, it will become necessary and appropriate for the respondents to have significantly greater access to the confidential documents and information. It is difficult to envisage the trial, or meaningful settlement discussions, being conducted without that occurring. Once this is accepted, then the present dispute is more about the timing of that access rather than whether it should occur at all.
In that context, the primary judge’s references to the approaching trial are apposite. In other cases, where the litigation is smaller in scale or the confidential information is less significant to the matters in issue, it may be that access to the confidential information can be deferred until closer to the start of the trial. Indeed, it may be that protection of the relevant confidence can be largely maintained throughout the trial. However, in a matter of the scale and complexity of the present one, different considerations arise. Whilst the trial is not listed to commence until August next year, it is appropriate in the context of the present matter to speak of the trial ‘approaching’. It is critical that the pleadings and discovery be finalised, and that expert reports and witness statements be prepared; delays in these matters occurring, or changes in the parties’ positions, will jeopardise the trial date. If the trial date needs to be adjusted, this will not be easy for the parties or the court to accommodate given the likely length of the trial. It is also critical that the parties have an opportunity to explore settlement well ahead of trial. As explained earlier, there will be significant difficulty in the respondents completing the above steps in the progress of the litigation in an appropriate manner without their having access to the confidential documents.
Finally, in carrying out the balancing exercise inherent in determining whether access should be granted, it is appropriate to have regard to the extent of the protection of the confidential information that may be provided as conditions of the access being granted. It is significant in the present matter that the respondents offered to accept, and the primary judge imposed, quite rigorous conditions upon their access to the confidential information. The general effect of those conditions has been described earlier in these reasons. It is enough for present purposes to observe that the conditions were designed to, and are likely to, materially reduce the risk of the disclosure or misuse of the confidential information.
Bearing in mind all of the above, it may be accepted that the decision whether to grant access was a finely balanced one. The primary judge was faced with a difficult decision. He was required to balance the interest ABCL has in seeking to protect its confidential information from a trade rival against the interest the respondents have in being able to participate in a direct and informed way in these large and complex commercial proceedings. Whilst permitting access to the nominated senior executives entails some risk of prejudice to ABCL, the respondents would continue to experience significant difficulties in the progress of the proceedings towards trial were access to be denied. Bearing in mind all of the matters canvassed above, and having regard to the breadth of the discretion reposed in the primary judge, and his advantageous position given his role as the judge managing these proceedings for over two years, we are not persuaded that his Honour’s decision to permit access, on the terms he did, was unreasonable. Error in the relevant sense has not been established.
Conclusion
For the reasons given, we grant leave to appeal but dismiss the appeal.