Adelaide Brighton Cement Limited v Hallett Concrete Pty Ltd (No 3)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS (No 3)
[2023] SASC 86
Judgment of the Honourable Chief Justice Kourakis
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS
The applicant and first respondent were parties to a cement supply agreement pursuant to which the applicant agreed to supply cementitious products to the first respondent on favourable terms (the most favoured customer term) and the first respondent agreed to purchase certain cementitious products exclusively from the applicant (the exclusivity obligation).
The applicant commenced proceedings against the first respondent for breach of the exclusivity obligation and against the other respondents for their tortious conduct in connection with that breach. The respondents filed a cross-claim for the applicant’s breach of the most favoured customer term.
The respondents, by interlocutory application FDN 342, seek to vary a confidentiality regime, which has been in place since April 2020, to enable the personal respondents, and the Chief Executive of the first and second respondents, to access certain confidential documents. The applicant opposes the application on the basis of the commercial sensitivity of the documents.
Held:
1. The application is allowed.
Al Rawi v Security Service [2012] 1 AC 531; Idoport Pty Ltd v National Australia Bank Ltd and Ors [1999] NSWSC 686; Mobil Oil Australia Ltd v Guyna Developments Pty Ltd [1996] 2 VR 34, considered.

ADELAIDE BRIGHTON CEMENT LIMITED v HALLETT CONCRETE PTY LTD & ORS (No 3)
[2023] SASC 86
Civil

KOURAKIS CJ: Adelaide Brighton Cement Limited (ABCL) is a manufacturer of cementitious products. Hallett Concrete Pty Ltd (Hallett) is a manufacturer of pre‑mix concrete and in recent times an importer and wholesaler of cementitious products. In April 2008, they entered into a Cement Supply Agreement (CSA) which was subsequently varied on 1 July 2014. The CSA required ABCL to supply specified cementitious products to Hallett at a lower price than it supplies those products to other ‘customers’ (the most favoured customer term). In turn, Hallett was required to purchase the cement it required for its concrete business exclusively from ABCL (the exclusivity obligation). The second respondent, SA Premium Cement and Concrete Pty Ltd (SAPCC), is a company related to Hallett which is involved in Hallett’s importation of cementitious products. The third and fourth respondents, Mr Pickard and Mr Hosking, are the principals of Hallett and SAPCC respectively.
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 from early 2018 Hallett has not purchased its cement exclusively from ABCL and that it, together with the other respondents, entered into arrangements, in particular the importation of cement in jumbo bags, to circumvent the exclusivity obligation. ABCL’s loss claim is based on its loss of sales revenue from Hallett, but necessarily addresses questions of mitigation of that loss by supplying others, and in particular, Independent Cement & Lime Pty Ltd (ICL), and consequential changes to its business operations. Hallett filed a defence denying ABCL’s claim and on 14 February 2020 filed a cross‑claim supported by a statement of cross-claim for breach of the most favoured customer term.
On 28 August 2020, a judge of this Court struck out Hallett’s statement of cross‑claim. However, the Judge accepted that it disclosed a sufficient basis on which at least some breaches of the CSA might reasonably be pleaded. Accordingly, the Judge did not dismiss the cross-claim, nor did his Honour enter summary judgment against Hallett. The Judge gave Hallett an opportunity to propound a more narrowly pleaded cross‑claim consistently with his Honour’s reasons. The Judge indicated that he would hear the parties further as to ‘the appropriateness and terms of any order for leave to replead’.[1]
[1] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors [2020] SASC 161 at [145] (Doyle J).
On 26 November 2020, Hallett filed an affidavit to which was annexed its proposed ‘Statement of Cross‑claim – Revision 3’ (the proposed cross‑claim). ABCL opposed the grant of leave to file the statement of cross‑claim in respect of some of its claims and the matter came on for hearing before me on 22 January 2021. On 17 May 2021 I overruled ABCL’s objections to certain paragraphs of the proposed cross-claim.
The loss claimed by Hallett includes:
·excessive payments it made to ABCL over and above the payments properly chargeable pursuant to the most favoured customer term;
·loss of substantial business profits flowing from its loss of competitiveness; and
·loss of the benefit of the 2014 CSA after its unlawful termination by ABCL.
Pursuant to orders made by Doyle J on 15 April 2020 (the confidentiality regime) the parties are permitted to discover documents and mark them as ‘confidential’, which, in effect, prevents anyone other than solicitors and experts who have signed and filed confidentiality undertakings from accessing those confidential documents or information contained in them.
By interlocutory application filed on 2 February 2023 (FDN 342), which is an amended version of an earlier application, the respondents seek an order that the third and fourth respondents, and Mr Salisbury, who is the Chief Executive of Hallett and SAPCC, be permitted access to certain classes of documents discovered by ABCL relevant to the breach of the most favoured customer term, (primarily the prices it charged other customers), and ABCL’s loss case, (primarily its revenue from alternative sources). Access to those documents has hitherto been confined to the legal practitioners conducting the litigation for the respondents (the respondents’ litigation lawyers), and the experts they might engage.
Pursuant to paragraph [3] of the application, the respondents seek a variation of the confidentially regime such that Messrs Pickard, Hosking and Salisbury be permitted to have access to the confidential documents identified in Exhibit CJR-208 to the 18th affidavit of Ms Robinson (18 Robinson), on the condition that they enter into confidentially undertakings. In the alternative, the Hallett respondents seek an order that the documents described in Exhibit CJR-208 be excluded from the confidentiality regime but do not press that order for now.
The access now pressed by the respondents, after concessions made by ABCL, is set out in a schedule which is Exhibit CJR-223 to the 19th affidavit of Ms Robinson (19 Robinson).[2]
[2] Affidavit of Ms Robinson sworn on 1 February 2023 (19 Robinson).
Ms Robinson has divided the documents, to which direct client access is sought, into the following categories:
(a)documents relevant to the allegations advanced in the Cross Claim – Revision 4 (and in turn, the Respondents' Defence to ABCL's loss case), as [explained] in paragraph 271 of [the 13th affidavit of Ms Robinson (13 Robinson)];
(b)documents relevant to the formulation of ABCL's loss case and the expert report of Mr Morris served by ABCL, as [explained] in paragraph 278 of 13 Robinson; and
(c)documents relevant to other matters raised in ABCL's Claim, as [explained] in paragraphs 281 to 284 of 13 Robinson.
In accordance with a proposal put by me during the course of an interlocutory hearing on 12 and 13 October 2022, after giving confidentiality undertakings, Messrs Hosking, Salisbury and Pickard were provided with access to, what might be called, samples of the documents sought and documents over which ABCL wholly or partially withdrew its confidentiality claims so that the respondents’ solicitors might take instructions from them on those documents. Those documents are:
13.1documents over which ABCL’s claims for confidentiality were wholly withdrawn, as identified in LGW-105 to Walsh 14;
13.2documents over which ABCL’s claims for confidentiality were partially withdrawn, as identified in LGW-105 to Walsh 14. ABCL provided redacted or filtered copies of these documents for provision to the Respondents on 29 November 2022;
13.3documents relating to ABCL’s supply to Jetcrete Oz Pty Ltd (Jetcrete) in the period 1 July 2014 to 30 June 2016; and
13.4a further redacted form of the Cross Claim – Revision 4 (Cross Claim) which was provided by ABCL for provision to the Respondents on 29 November 2022.
The purpose of what has come to be known as the ‘tutoring exercise’ was to assess whether the instructions given on those documents enabled the respondents’ litigation lawyers to finalise Hallett’s pleadings consistently with their duties and responsibilities as legal practitioners.
In 18 Robinson, whilst maintaining her clients’ privilege over all communications made in the course of the tutoring exercise, Ms Robinson deposes to the failure of the tutoring exercise to achieve its purpose. In paragraph [128] of 18 Robinson, Ms Robinson summarised the broad reasons for pressing the claim that access be given to Mr Salisbury and the third and fourth respondents as follows:
The Respondents require access to the documents to which are listed in CJR-208 (referred to below) based on the following factors.
(a)… My clients were deprived of, and continue to be deprived of, the ability to make informed decisions regarding the progress of the litigation given they remain unable to view information which is of critical significance to the proceedings, including parts of the Cross Claim (and other pleadings).
(b)… Access is sought to information which I have identified as necessary to the proper progression of the matter, including to enable my clients to:
(i)    understand the allegations advanced within the Cross Claim that ABCL breached the Most Favoured Customer term by charging Hallett a higher price than was being charged to one or more other customers;
(ii)     understand the impact of the Cross Claim on ABCL's loss calculation, as a result of the consequential allegations by the Respondents in paragraph 40.10 of the Defence to ABCL's claim that any loss must first start at the price Hallett should have been charged by ABCL and the equitable set off pleaded by Hallett; and
(iii)    understand the manner in which ABCL's loss claim is formulated, including the merits of that loss claim and the defences thereto.
…
(d)I am concerned that as a result of the foregoing, the solicitors at Thomson Geer and Counsel for the Respondents will be unable to properly discharge their professional obligations pursuant to South Australia's Legal Practitioners Conduct Rules (Conduct Rules), and in particular, Rule 7.1 which requires a legal practitioner to provide clear and timely advise to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter. …
(e)… without this information it is difficult for my clients to make critical decisions regarding the progression of the litigation. …
(f)… my clients are unable to properly consider their position on any possible settlement of the litigation. …
(g)… Assuming [orders are made for the provision of expert reports] and without access to the information to which I seek access for my clients, then:
(i)    I will be required to seek instructions from my client regarding the preparation of expert reports, including to incur significant costs, while they remain unaware of the substance of the allegations being advanced in the Cross Claim, the nature of the loss case being advanced against them and the merits of that loss case. …
(ii)     … my clients will be unable to see the reports produced and at most may only be able to see an executive summary. …
(iii)    … The provision of this type of critical information for only a limited time period and limited customers is insufficient to address this prejudice.
(h)… Given the Cross Claim - Revision 4 and the Respondents' Application for further and better discovery were required to be advanced without meaningful input from my clients, it is possible that further issues will be identified by my clients that should properly be addressed in the pleadings or requests for further discovery may be required to be made, both of which should occur in advance of any trial.
…
(j)Given the inherently technical nature of many of the documents, I am concerned that without being able to provide documents to my clients and seek specific instructions, my clients will be disadvantaged, given forensic decisions that may need to be made during the proceedings, which Thomson Geer as the Respondents' solicitors and Counsel will be required to make without the benefit of informed instructions from our clients. The nominated executives have significant industry experience and knowledge, including regarding stock movements, record keeping processes and the operation of SAP and other related systems, and accordingly would be able to review and consider the confidential documents with greater technical insight than lawyers without that industry experience. I expect that my clients will be able to make observations and provide instructions on matters within the documentary material that I would not identify, which are only apparent to them as a result of their extensive industry experience. …
(k)While in some cases, I may be able to obtain technical assistance from experts, the fundamental issue remains that I cannot properly discharge my professional obligations and provide advice in sufficient detail to allow my clients to make informed decisions regarding the progression of the litigation. Further, it would be unsatisfactory for my clients to be required to expend significant amounts of money to obtain technical assistance they are capable of providing themselves, particularly when regard is had to the diminishing nature of the confidential information.
Paragraph [129] of 18 Robinson explains, in general terms, why the tutoring exercise failed to alleviate the prejudice which is described in paragraph [128]:
(a)The information which has been provided by ABCL in respect of Jetcrete Oz is not representative of the position in respect of the Batching Plant Customers, such that I cannot meaningfully undertake any sort of tutoring exercise with my clients. …
(b)I am unable to undertake a meaningful tutoring exercise with the information which has been provided by ABCL in respect of the Independent Batching Plant Customers, as I am still unable to provide my clients with information regarding the totality of the Cross Claim. Further, while information has been made available for the period 1 July 2014 to 31 December 2017, the manner in which redactions have been applied by ABCL in the Redacted Cross Claim still constraints my ability to provide advice regarding allegations in relation to this period (as the allegations span, in some cases, across the whole period). I explain this further, particularly in respect of Boral, below.
(c)Given the operation of the Comparison Price clause requires an assessment on a month-by-month basis of the price charged by ABCL to other customers, without being able to provide information for the time entire period and for each customer, Thomson Geer is restrained in its ability to properly advise its clients regarding:
(i)    the prices changed to each customer named in the Cross Claim in each relevant month;
(ii)     a calculation of the lowest price charged;
(iii)    the merits and proper quantification of ABCL's loss claim, including having regard to the impacts of the Cross Claim on ABCL's loss claim.
(d)The contractual arrangements, pricing and rebate arrangements in place are different for each customer. Likewise, there are nuances in respect of the allegations advanced for all of the various customers. Without access to the full suite of information for all customers across all time periods, an accurate picture of the proceedings cannot be ascertained, including an accurate assessment of quantum and merits.
I examine those claims more closely below.
The batching plant customers
The batching plant customers of ABCL are those who purchase cement for the purpose of manufacturing concrete in plants which are situated on, or are conducted in connection with, large construction sites. The breaches of the most favoured customer term alleged by Hallett in respect of the batching plant customers may be summarised as follows:
(a)The supply of fly ash, GP cement, and a variation of GP cement formulated especially for use in mining operations known as Minecam, to BHP Billiton Olympic Dam Corporation Pty Ltd (including its related companies – BHP) at Olympic Dam between May 2018 and April 2020 at prices specified in the pleading which prices are less than the price Hallett was charged.
(b)A settlement reached between ABCL and BHP over an alleged underpayment by BHP which resulted in BHP being charged less, again, than the price paid by Hallett.
(c)The supply of GP cement to BHP’s contractor, Exact Contracting Services Pty Ltd (together with its related entities – Exact Mix), between July 2014 and April 2018 at prices specified in the pleading which prices are less than the price Hallett was charged.
(d)The supply of GP cement to Downer EDI Mining Pty Ltd (Downer) for its use at the Carrapateena Mine between July 2018 and December 2019 at prices, excluding freight, specified in the pleading which prices are less than the price Hallett was charged.
(e)The supply of GP cement and Minecam to OZ Minerals Limited (together with its related entities – OZ Minerals) in the period from January 2015 to April 2020 at prices, excluding freight, specified in the pleading which are less than the price Hallett was charged, and which were further reduced by ABCL’s failure to pass on a freight charge it incurred.
(f)The supply of GP cement, SL cement and slag to Lendlease Corporation Ltd (together with its related entities – Lendlease) for the construction of the Northern Connector Project either directly or through ABCL’s related corporate entities, Southern Quarries Pty Ltd (Southern Quarries) and Direct Mix Concrete Pty Ltd (Direct Mix), at prices which can be inferred, from Hallett’s failure to win the Lendlease contract, to have been less than the price Hallett was charged.
I pause to make the perhaps trite obvious observation that, in the absence of instructions from Hallett, its litigation lawyers have, in effect, formulated Hallett’s claim for it and have, of necessity, undertaken responsibility for Hallett’s litigation choices as to what to plead and what not to plead.
I set out, as Appendix I of these reasons, the more salient elements of Ms Robinson’s account in 18 Robinson of the particular difficulties encountered in obtaining adequate instructions on the alleged breaches of the most favoured customer term in respect of batching plant customers. In summary, the causes of difficulties are:
·the different contracting arrangements between ABCL and each batching plant customer and, in particular, a number of issues unique to the claim in respect of supply to BHP;
·changes in those arrangements over time;
·the documents disclosed do not always exemplify the breaches pleaded e.g. as to different freight arrangements and charges;
·the terms of the most favoured customer term which require a comparison of the prices each customer was charged in each month;
·the supply of Minecam, in lieu of GP cement, to some customers in some periods which complicates the assessment of whether, and how, the most favoured customer term was breached.
Independent batching plant customers

Hallett also claims losses in respect of breaches of the most favoured customer term in the supply by ABCL to independent batching plant customers. Independent batching plant customers deliver premixed concrete in special purpose mixing trucks to construction sites. Hallett alleges that the most favoured customer term was breached by:
·invoicing lower amounts;
·supplying product pursuant to agreements whereby rebates or discounted transport costs were provided; or
·pursuant to swap arrangements with other cement producers.
A major part of Hallett’s claim is founded on the supply by ABCL of cementitious product to Holcim (Australia) Pty Ltd (Holcim), Hanson Australia Pty Ltd (Hanson) and Cement Australia Pty Ltd (together with its related corporate entities – Cement Australia), an incorporated joint venture of Holcim and Hanson. Cement Australia is a manufacturer and supplier of cementitious products with facilities interstate and at Birkenhead in South Australia. Hallett’s case is that complex arrangements were made for the cross-supply of cementitious products between ABCL and Cement Australia at a price struck by reference to their respective manufacturing costs. Hallett pleads that between April and May 2018 ABCL engaged in swap arrangements with Cement Australia, Hanson and Holcim which had the practical effect of ABCL supplying them with cement at a price less than the price charged to Hallett.
Hallett frames its case on the premise that Cement Australia could have imported cementitious product into South Australia at about $140 per tonne and that ABCL, therefore, supplied product to Cement Australia in accordance with the swap arrangement at a price less than the price it charged Hallett. Hallett pleads that the lower price for GP cement charged by ABCL to Cement Australia, Hanson and Holcim was substantially less than the price of GP cement supplied to Hallett.
Hallett also pleads a supply of cement products by ABCL pursuant to a swap arrangement with Boral Limited (including its related entities – Boral) from 2014 and 2019. The arrangement was that ABCL would supply GP cement to Boral in South Australia, and that Boral would supply SL cement to ABCL in New South Wales. Hallett pleads that the effective price of the cement supplied by ABCL to Boral was substantially below the price charged to Hallett.
Hallett also claims in respect of the supply of GP cement to various independent batching plant customers in the South East of South Australia at a price below the most favoured customer price charged to Hallett. It alleges that the price offered to those customers was calculated by reference to the cost at which those customers could have sourced GP or GB cement from Boral or Holcim, Hanson and Cement Australia in Geelong and Port Melbourne, respectively.
Hallett claims a breach of the most favoured customer term in the supply of GP and GB cement to Concrete Supply Pty Ltd (Concrete Supply) in relatively unique circumstances. Concrete Supply remitted amounts from time to time to ABCL for cement supplied for the purpose of large housing developments. The amount remitted by Concrete Supply was 60 to 70 per cent of ABCL’s list price for the cement. The balance of the list price was never paid because Concrete Supply went into administration. For the purposes of its claim, Hallett calculates the price paid by Concrete Supply by dividing the total sums Concrete Supply remitted in each of the calendar years 2014, 2015, 2016 and 2017 by the tonnages supplied in those years. The price so calculated is pleaded to be less than the price Hallett was charged.
Hallett also claims in respect of the supply of GP and GB cement to Direct Mix and Southern Quarries, which are subsidiaries of Adelaide Brighton Limited, the parent company of ABCL. Direct Mix and Southern Quarries won a tender over Hallett to supply pre‑mix concrete to the Northern Connector Project. Direct Mix and Southern Quarries also won tenders over Hallett to supply concrete to other construction sites. Hallett alleges that Direct Mix and Southern Quarries were charged at a price which was referable to ABCL’s cost of production. Hallett pleads that in each month, from September 2016 to December 2018 and in March 2020 and April 2020, ABCL charged Direct Mix a lesser price for GP cement than the price it charged Hallett.
Hallett claims a breach of the most favoured customer term between April 2017 and April 2018 in that ABCL supplied Turners Readymix Concrete (Turners) GP cement at a price specified which was less than the price paid by Hallett.
In summary the difficulty arises from confidently determining the applicable comparative price charged those customers for the purposes of pleading, or not pleading, a breach of the most favoured customer term, and the consequential loss.
The two elements of Hallett’s formulated damages for the breaches of the most favoured customer term are a loss of profit from the concrete supply contracts it failed to secure and the additional cost to it of producing concrete.
I attach, as Appendix II to these reasons, the more salient aspects of Ms Robinson’s explanation for the failure of the tutoring exercise in respect of the independent batching plant customers.
ABCL’s loss case
At the core of ABCL’s loss case, and the report of ABCL’s forensic accountant, Mr Morris, are dealings between ABCL and ICL by which ABCL attempted to make up for the loss of sales of cement to Hallett. ABCL pleads that its loss comprises the difference between the revenue it would have made from selling to Hallett, had Hallett not breached the exclusivity obligation, and the revenue that it received from selling cement, instead, to ICL in Victoria. Documents relating to that loss case include agreements and documents generated in connection with the sale of cement by ABCL to ICL in the relevant period.
In order to ascertain ABCL’s loss, it is also necessary to take into account ABCL’s production capacity, cement stocks and sales of cement out of its Birkenhead plant. Production issues affecting ABCL’s cement mill also bear on that question. It is also necessary to take into account ICL’s requirements for cement as well as supply and shipping schedules in the relevant period. The arrangements between ABCL and ICL are complicated by ABCL sourcing cement from domestic and international suppliers, including from Boral and Cement Australia pursuant to their swap arrangements. It is the documents bearing on these issues, and Mr Morris’ reports, to which the respondents seek direct party access.
Ms Robinson deposes that, without being able to provide the Morris reports and the related documents to Messrs Hosking, Pickard and Salisbury, she is unable to properly understand or appreciate how Mr Morris arrives at his opinions. Ms Robinson also deposes that the respondents are prejudiced in their ability to make informed decisions about the weakness or strength of the case against them and from being able to give proper instructions for the efficient conduct of the case.
The commercial sensitivity of the documents arises from the prospect that the Hallett Group may compete with ICL in the supply of cement in Victoria. The Hallett Group’s distribution hub for cement in Port Adelaide will be completed this year. A manufacturing facility planned for Port Augusta will be completed in 2024. Mr Salisbury has instructed Ms Robinson that Hallett does not plan to compete with ICL. I place little weight on that instruction. However, it is of some significance that Hallett’s historical base is South Australia and interstate expansion can be expected to take some capital cost and time to effect. The information relating to ICL to which Hallett seeks access is for a period ending on 30 April 2020. Its utility to Hallett should it, in the future, compete in the cement market in Victoria, will be diminished by the passage of time.
Conclusion on access to cross-claim documents
I accept Ms Robinson’s account of the practical difficulty in applying the instructions and information she received by engaging in the tutoring process to the different arrangements between ABCL and other customers. I acknowledge the strength of ABCL’s submission that the difficulties are not spelled out in detail but the tutoring exercise, necessarily, required the taking of instructions over which the respondents reasonably maintain legal professional privilege. Quite properly, it has not been suggested that that privilege was impliedly waived by such assertions as have been made by Ms Robinson. It was, necessarily, implicit in attempting the tutoring exercise that privilege would not be lost.
The obligation of legal practitioners in conducting litigation is a heavy one. In the ordinary course it requires obtaining information, often peculiarly within the knowledge of the client, pleading in accordance with those instructions, comparing and contrasting that information with the pleadings and discovered documents of other parties, advising on alternative courses of action and then acting on the instructions given in response to that advice. Moreover, that process is often an iterative one. Simply to articulate the responsibility of a legal practitioner in that way exposes the difficulties faced by the respondents’ litigation lawyers in engaging in that process in a comprehensive way because of the confidentiality regime imposed in this case.
The parties are working towards a timetable which will culminate in a trial in the second half of 2024. The proceedings are complex and have, no doubt, already placed the parties at considerable expense. The trial, too, will be long, complex and expensive. The onerous obligation on practitioners in complex commercial cases does not extend to assuming, in effect, the role of litigation guardian. For a trial to proceed in the second half of next year, the time has come for the pleadings to be finalised, matters in dispute to be narrowed, and formal and informal settlement steps to be undertaken. On those grounds alone there is strong reason to vary the confidentiality regime to ensure that the respondents’ litigation lawyers are conducting the litigation with the informed consent of their clients. The risk to efficient conduct of this complex and expensive litigation in the absence of informed instructions is great.
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.
The applicable legal principles are not in dispute. They were summarised in the respondents’ submissions as follows:
·A party to a litigation generally has a right to have access to documents relevant to the issues in the proceedings. This is particularly so when it is a defendant seeking access to documents from a plaintiff who has invoked the jurisdiction of the Court.
·Confidentiality is not normally a sufficient reason to deny inspection of discovered material.
·the onus lies with the party seeking to impose restrictions to demonstrate the appropriateness of those restrictions.
·The Court must engage in a balancing exercise between the interests of the party seeking production and the interest 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 in a particular case.
·The relevant factors to be addressed are:
·       the degree of relevance of the documents in question;
·       the extent to which the documents are confidential;
·       the use to which the information may be put once known;
·       the utility and procedural fairness of imposing restrictions; and
·       any other matter relevant to the due administration of justice.
·Consideration of the appropriateness of any confidentiality regime or restrictions should be assessed at the relevant time, to ensure that the regime is in the interests of justice based on the particular circumstances extant from time to time.
In Mobil Oil Australia Ltd v Guina Developments Pty Ltd (Mobil Oil),[3] the Victorian Court of Appeal allowed an appeal against an order of a judge allowing the plaintiff in the proceedings to inspect the documents of a third party with whom they were a competitor over which a claim of commercial confidentiality had been made. The Court of Appeal remitted the application for disclosure for a further hearing on the ground that the Judge had permitted access without first inspecting the documents which, of their very nature, might give the plaintiff a significant commercial advantage. It is neither practical nor of much utility for me to engage in a process of that kind. The commercial sensitivity of the documents is plain enough, as are the difficulties in obtaining instructions. It is not necessary that I wade through volumes of invoices to understand what is at stake.
[3] [1996] 2 VR 34.
In Mobil Oil the plaintiff was the unsuccessful tenderer for the construction and operation of a service centre alongside a freeway. The plaintiff claimed that the defendant, Roads Corporation, had engaged in misleading and deceptive conduct in that it had failed to apply the criteria it had agreed to, or represented it would, use in evaluating the tenders.
The plaintiff sought inspection of the documents of the successful tenderer, Mobil Oil Australia Ltd (Mobil) and McDonald’s Australia Ltd (McDonald’s). The Roads Corporation resisted inspection on the grounds of commercial confidentiality. A Master ordered that the Roads Corporation make the tender documents available for inspection by the plaintiff. On an appeal to a single judge the order was varied so as to require an undertaking from the plaintiff’s principal not to disclose or discuss the contents other than with his legal advisors and accounting experts. Mobil and McDonald’s, who were not parties to the proceeding but were granted leave to intervene, appealed.
I observe at the outset that access to Mobil’s documents was not necessary to frame and plead the plaintiff’s case against the Roads Corporation. The application of the Roads Corporation’s matrix to Mobil’s tender could only have been illustrative of the claimed departure from its representations. The plaintiff’s case must, primarily, have relied on the differences between how the Roads Corporation had represented it would evaluate the tenders and the tender evaluation matrix it actually used on all tenders.
Mobil and McDonald’s contended that if the documents were inspected by the plaintiff, the plaintiff could infer the rates of net return that they expected to receive from developing the service centre and, importantly, the point beyond which Mobil would not bid for a particular site in the future. The Judge nonetheless ordered disclosure holding that only in exceptional cases would a court limit inspection of a party’s legal representatives. The appeal was allowed on the ground that the Judge erred in granting direct access to documents of such commercial significance to a party which was a competitor without first inspecting them himself.
Hayne JA, as he then was, with whom Winneke P and Phillips JA agreed, emphasised that the process of discovery, as important an element of English legal procedure as it was, should not be allowed to place upon the litigant or other person any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done. Hayne JA also emphasised that discovery is but a tool to be used in the pursuit of justice and is not without its limits and accepted that, in an appropriate case, access might be limited to a party’s legal advisors or experts.
Hayne JA elucidated the relevant principles as follows:[4]
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 more 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 (as 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?
…
… It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the party seeking inspection and the party claiming confidentiality. No more specific rule can be laid down - each case will fall for determination according to its own facts. In particular, the nature and the content of the disputed documents is a matter that will usually, if not invariably, be of great importance in forming a conclusion… It is by no means self-evident to me that disclosure to the principals of the plaintiff is necessary for the attainment of justice. In particular it is not self-evident that the plaintiff can properly consider the course which it will follow in relation to the litigation only if its principal has access to the material that is confidential.
(Emphasis added)
[4] [1996] 2 VR 34 at 38.
The distinctions between the nature and use of the confidential documents in Mobil Oil and in these proceedings are significant. First, the plaintiff’s pleaded claim was not formulated on the basis of Mobil’s tender. Mobil’s tender documents did not directly prove the plaintiff’s case whereas, in these proceedings, the documents evidencing the pricing arrangements are the very foundation of Hallett’s plea of breach of the most favoured customer term. Similarly, the documents on ABCL’s loss case will be the primary proof in its case on damages. The relevance of the documents sought in Mobil Oil was as an evidential means of illustrating the failure of the Roads Corporation to apply the criteria it had represented it would use. Secondly, the plaintiff in Mobil Oil had no special trade knowledge which could significantly contribute to the assessment of whether the Roads Corporation had applied the represented criteria. Thirdly, and relatedly, legal practitioners and experts could reasonably analyse the evaluation of Mobil’s tender after receiving instructions from the plaintiff on the application of those criteria to its tender.

In Al Rawi v Security Service,[5] Lord Dyson JSC articulated the procedural fairness limit on a court’s power to regulate it own procedures and emphasised the right of parties to litigation to participate in it in accordance with the principle of open justice:
… the Courts power to regulate its own procedures is subject to certain limitations. The basic rule is that (subject to certain established and limited exceptions) the Court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.
[5] [2012] 1 AC 531 at 575 [22].
In Idoport Pty Ltd v National Australia Bank Ltd,[6] Rolfe J rejected the imposition of confidentiality regimes in respect of witness statements which had been exchanged, which were ‘inimical to the purpose of the exchange of witness statements’.[7] A regime calculated to limit misuse of the statements was imposed instead. Rolfe J accepted the importance of legal representatives and experts engaged by a party obtaining full and proper instructions in order to discharge their duties. He observed that efficiency in the administration of proceedings requires that occur with minimum delay and impediment. Rolfe J observed that a court ‘must have regard not merely to the confidentiality or commercial sensitivity of the information but also to the basic right of the party against whom it is tendered to have every reasonable opportunity to answer it fully’.[8]
[6] [1999] NSWSC 686.
[7] [1999] NSWSC 686 at [84].
[8] [1999] NSWSC 686 at [45].
The respondents have proposed a confidentiality regime which implements the following primary safeguards, in addition to Messrs Pickard, Hosking and Salisbury giving undertakings:
·Hard copy documents are reviewed only on Thomson Geer’s premises and not removed.
·Review of electronic documents is by way of a dedicated personal computer at Thomson Geer which has no internet access, network access, wifi or bluetooth connectivity or connected printer and has USB ports disabled from copying files on the computer to an external device.
·No hard copy documents or notes of the content of any of the materials are to be taken from Thomson Geer’s premises by the respondents’ representatives.
·Review of the documents is to be supervised by one of three specified partners or employees of Thomson Geer who has provided both confidentiality undertakings adapted to the supervision of the process of disclosure.
ABCL has proposed some amendments to that regime. I return to, and resolve, the primary difference between the parties below.
The material to which access will be given is voluminous. Assuming the ordinary limitations on human memory, it will be extremely difficult for any person who has access to the documents, but who cannot make a record of their contents, to accurately recall the detail of the many different prices charged and costs incurred and the changes over time. I am satisfied that the proposed regime will substantially reduce the risk of the misuse of material to unfairly steal a competitive advantage.
I sought submissions from the parties as to which of Mr Pickard, Mr Hocking or Mr Salisbury should be given access if I were minded to restrict the representatives of the respondents to whom access might be provided. ABCL submitted that it should be Mr Pickard alone. The respondents submitted that it should be both the personal respondents and Mr Salisbury.
If one of the two personal respondents, or one of the two corporate respondents is to be given access, it is difficult to justify denying access to the other. I acknowledge ABCL’s submission that there is reason to suspect that arrangements are in place which are intended to place the financial burden of the litigation on Hallett or its related group of companies. However, the terms of that arrangement cannot, confidently, be inferred. Nor can the efficacy of the arrangement be assumed. There is simply no evidence of any such arrangement before me and I am not prepared to draw from the respondents’ failure to disclose the details of any financial interdependence between them that effective arrangements are in place. Moreover, there is more to litigation than the financial aspect. Vindication of asserted right is also important. In that respect Mr Hosking has a personal and derivative interest, for himself and SAPCC respectively.
Allowing Mr Salisbury access will not materially increase the risk of misuse of the information if both principals have access to it. On the other hand, the efficient and expeditious progress of the proceedings is likely to be improved.
The pleadings are the essential foundation and superstructure of an action. The point has been reached where the parties must be given an opportunity to give informed instructions on their case, which hitherto has largely been pleaded by their litigation lawyers exercising judgments which are neither informed by, nor anchored in, the instructions of the parties for whom they act.
I will give access to both Mr Salisbury and the two personal respondents.
The primary differences between the parties on the proposed regime, should access be given, are:
·whether the principals and Mr Salisbury should be allowed to make notes of the restricted material;
·whether they should be allowed access to any of their electronic devices in breaks taken outside of the room in which the documents have been viewed or only when they leave; and
·whether their legal practitioners should be allowed to provide written advice which reproduces or mentions any of the confidential material.
I would allow Mr Pickard, Mr Hosking and Mr Salisbury to make written notes. The purpose of granting them access is to enable them to give informed instructions to their legal practitioners on the claims and defences which have been filed on behalf of the respondents. As I have already laboured the claims are complex and the related documentary material voluminous. The era of the oral narrative came to an end centuries ago. The art of reading silently to oneself, reportedly first mastered by St Ambrose in 384 AD, is now almost universally practised. It is a more efficient means of accurately digesting complex information. In accordance with the proposed regime the notes must be left in the room. The notes will provide an easy ready reference to particular documents on which they will seek to give instructions.
The only risk in allowing them to make notes, is that the process of writing may aide memory. However, as I have already emphasised, the detail and complexity of the information in the voluminous material, or much of it is, unlikely to be remembered. The creation of the note itself will not add much risk because of the requirements of supervision and that the note be left behind.
The instructors are responsible for the extensive business operations of the respondents. Many in their enterprises depend on decisions made by them every day to get on with their work in the company’s operations. They no doubt also have personal matters to attend to. The risk of misuse of access to their devices will substantially be reduced if they are only permitted to use them in the presence of a solicitor. I would so order.
The provision of legal advice is an essential and integral part of the giving of instructions that the access is calculated to facilitate. The instructors should have the facility to read and re-read the advice they are given in respect of the confidential material before giving their litigation lawyers their final instructions.
I will hear the parties as to the precise terms on which access should be allowed.

APPENDIX I
Batching plant customers
140In relation to the batching plant customers, ABCL has permitted Messrs Hosking, Salisbury and Pickard to access information for Jetcrete OZ Pty Ltd for the time period 1 July 2014 to 30 July 2016.
141Thomson Geer has provided this information to Messrs Hosking, Salisbury and Pickard and considered whether it is possible, relying on this information, to undertake a tutoring exercise of the type suggested by the Chief Justice (Transcript, 13 October 2022; pages 233-234, a copy of which is annexed as CJR-202).
142The information provided in respect of Jetcrete OZ Pty Ltd is not sufficient to address my concerns or to enable me to obtain meaningful instructions from my client. As I explain further below, a tutoring exercise is not possible, given:
(a)     the contractual arrangements and pricing for each of the Batching Plant Customers differ;
(b)     the contractual arrangement and pricing for many of the Batching Plant Customers change over time; and
(c)     the information provided in respect of Jetcrete OZ Pty Ltd is not representative of the other Batching Plant Customers, as the information on its face tends to disclose no breach by ABCL of the Comparison Price clause, and is not the information upon which the revised allegations in paragraph 33 of the Cross Claim were prepared.
143As matters stand, I cannot provide to the Respondents any information which discloses the basis for the substantive allegations advanced in the Cross Claim ‑ Revision 4, including:
(a)     the contractual arrangements between ABCL and each of BHP, Exact Mix, Downer EDI, Oz Minerals in its own right and Lendlease, including terms of supply, list prices and the terms upon which any rebates may be invoiced or applied;
(b)     information regarding the cementitious products supplied to each of BHP, Exact Mix, Downer EDI, OZ Minerals in its own right and Lendlease; and
(c)     the price ABCL purports was charged by ABCL to each of BHP, Exact Mix, Downer EDI, Oz Minerals in its own right and Lendlease, including information relating to any rebates or credits provided by ABCL to those customers.
144Any assessment of the prospects of Hallett's Cross Claim, including a quantification of loss, requires consideration of the arrangements in place for each individual customer, as well as for each month.
145Given documents of the type to which I refer in paragraph 143 remain confidential and cannot be provided to the Respondents, the redacted version of the Cross Claim provided by ABCL for provision to Messrs Hosking, Pickard and Salisbury to which I refer in paragraph 123(d) still has critical allegations redacted, as can be seen in the Redacted Cross Claim, annexed as CJR-206.
…
OZ Minerals / Jetcrete
148As I have explained above, ABCL has permitted Messrs Hosking, Salisbury and Pickard access to information in relation to ABCL's supply to Jetcrete OZ Pty Ltd (Jetcrete) only and for the limited period 1 July 2014 to 30 June 2016. The information in respect of Jetcrete does not assist me to undertake any sort of tutoring exercise nor provide any meaningful advice to my client.
149The allegations in paragraph 33 of the Cross Claim are composite allegations relating to the supply by ABCL to OZ Minerals (or its subsidiary) and/or its contractor on the Prominent Hill mine, Jetcrete OZ Pty Ltd.
…
152The information which has been made available by ABCL to Messrs Hosking, Salisbury and Pickard is not of assistance in seeking instructions and advancing the Cross Claim for the following reasons.
(a)     The allegations advanced in paragraph 33.4 for the period January 2015 to 30 June 2016 are prices that were charged by ABCL to OZ Minerals, not Jetcrete. The pricing charged to Jetcrete pursuant to a separate agreement or arrangements therefore does not assist to seek meaningful instructions regarding the Cross Claim. I have not been able to provide my clients with any of the agreements referred to above between ABCL and OZ Minerals.
(b)     ABCL has redacted the ‘OZ Minerals Price’ column in paragraph 33.4 in the Redacted Cross Claim, including for the period 1 January 2015 to 30 June 2016 ...
(c)     The allegations in paragraph 33 of the Cross Claim extend past 30 June 2016 and there was a material change in supply arrangements in around May 2019, as I explain above.
(d)     There is a unique allegation in paragraph 33.4A of the Cross Claim in respect of OZ Minerals (not Jetcrete) regarding certain freight charges appearing in the Mining CoPA Report (ABL. 0480. The price of those additional freight charges has been redacted in the Cross Claim. In paragraph 33.7(e) of its Defence to Cross Claim, ABCL alleges that the additional freight charges were hire fees of vehicles operated by ABCL and discovery of certain documents in respect of this matter has been made by ABCL. I cannot provide my clients with the documents discovered on these topics (including the Mining COPA and the transport invoices) so I remain constrained in my ability to seek instructions regarding those matters.
…
155Using January 2015 as an example only, based on the information provided for this customer alone, after considering the material provided by ABCL in respect of Jetcrete, Hallett may conclude that it did not have a claim for breach. However, paragraph 33.4 alleges that OZ Minerals were being charged $35,941tonne less. Schedule I to the Cross Claim alleges that Hallett was supplied 2,981.70 tonnes of GP cement in January 2015, meaning in that month alone and considering OZ Minerals only, it is alleged that Hallett overpaid by $107,162, however based on the information provided to Messrs Hosking, Salisbury and Pickard in connection with Jetcrete Oz, they would consider the quantum of the Cross Claim for Batching Plant Customers in that month was $0.
156In addition to the information not being truly representative, information for any one Batching Plant Customer would not be sufficient to enable a tutoring exercise to be undertaken to alleviate the prejudice facing the Respondents in respect of its lack of knowledge of allegations for all the Batching Plant Customers the subject of the Cross Claim. This is because there are discrete issues which arise in respect of each customer, both factual and legal, which require reference to the specific contractual arrangements in place. I explain this further below.
…
BHP
…
165Given the unique nature of the arrangements between ABCL and BHP, I am not able to use the limited information which has been made available to Messrs Hosking, Pickard and Salisbury in respect of Jetcrete, nor the information made available in respect of the Independent Batching Plant Customers for the period 1 July 2014 to 31 December 2017 in order to provide advice to my clients regard the merits of the allegations advanced in respect of BHP, the possible quantum of those allegations, nor the substance of any defences which may be available to BHP. In this respect:
(a)     In its Defence to Cross Claim, ABCL pleads in paragraph 29.2(e) to 29.2(g) that BHP was not a ‘Customer’ within the meaning of the 2014 CSA as a result of certain factual circumstances relating to ABCL's supply to BHP, and BHP's use of the cementitious materials so supplied. The contractual arrangements in place between ABCL and BHP is a relevant factor to assessing ABCL's allegations. A tutoring exercise using information in respect of any other customer will not enable me to obtain complete instructions, nor provide complete advice in respect of this issue.
(b)     In paragraph 29.5 of the Cross Claim, Hallett advances allegations in respect of the use of 'Transitional Product’ and the supply to BHP of Minecem at the price of Type GP Cement. This issue also arises in respect of OZ Minerals (not Jetcrete). While the Respondents seek further discovery on this topic, key documents which have been discovered by ABCL in relation to this allegation are subject to claims of confidentiality and cannot be provided to my clients, Accordingly, I cannot provide advice to my clients regarding these allegations. Further, the contractual arrangements, pricing and specific factual circumstances relating to supply by ABCL to BHP are relevant to these allegations, such that access to the specific arrangements between ABCL and BHP are required. A ‘tutoring exercise’ would not be possible.
(c)     In paragraph 29.6A of the Cross Claim, allegations are advanced in respect of alleged under payments for Product by BHP and the consequential impact of those under payments on the Comparison Price. To the best of my knowledge, this issue is unique to BHP and does not arise in respect of any of the other Batching Plant Customers. I cannot provide my client with any information regarding these allegations, nor the relevant documents discovered by ABCL on this topic.
(d)     The allegations in paragraphs 29.4 and 29.5A regarding the price ABCL was charging to BHP is unique to BHP. The allegations in respect of the other customers (both Independent Batching Plant Customers and Batching Plant Customers) differ. Accordingly, without access to the pricing information for BHP (and in turn, each other customer) an accurate picture of quantum cannot be provided to my clients.
166The information regarding BHP is likewise of critical significance to ABCL's Claim against the Respondents given:
…
Downer EDI
…
183I remain unable to provide Messrs Pickard, Salisbury and Hosking with any information regarding the price charged by ABCL to Downer EDI. This includes the following information:
(a)     the customer invoice report (ABL.0479) and the COPA report (ABL.0480) recording supplies, pricing, adjustments and freight in respect of ABCL’s supplies to Downer EDI in the period 1 July 2014 to 30 April 2020;
(b)     monthly statements purportedly issued by ABCL to Downer EDI in the period 1 July 2014 to 30 April 2020 (ABL.0991 to ABL.1060);
(c)     bundle of invoices purportedly issued by ABCL to Downer EDI (ABL.0916, ABL.0917) and adjustment credit memo purportedly issued by ABCL to Downer EDI (ABL.0924);
(d)     documents relating ‘project pricing’ in 2016 (ABL.0647, ABL.0648, ABL.0649 and ABL.0655);
(e)     adjustment request form (ABL.1499);
(f)     spreadsheet regarding rebates offered by ABLC to Downer EDI (ABL.1744); and
(g)     Supply Agreement between ABCL and Downer EDI (ABL.0495). While the document itself is dated ‘22 Feb 2020’, the document on ABCL’s list of documents is dated May 2019 which I understand is approximately the date the agreement commenced, including having regard to the matters I refer to below.
184I am unable to use information which has been made available in respect of Jetcrete (nor in respect of the Independent Batching Plant Customers), given the arrangements in place between ABCL and Downer EDI are unique and the information which I have been able to provide my clients in respect of other customers and time periods does not assist me to obtain meaningful instructions, nor provide fulsome advice. …
…
Lendlease
…
195The contractual arrangements between ABCL and Lendlease differ significantly to the arrangements with Jetcrete, such that no meaningful 'tutoring’ exercise can be undertaken to assist in understanding the allegations advanced against Lendlease. Without being able to provide my clients with the information to which I refer in paragraph 194, 1 cannot meaningfully advise my client regarding the allegations in paragraph 34 of the Cross Claim.
APPENDIX II
Robinson [18] deposes to the failings of the tutoring exercise in respect of that part of the tutoring exercise as follows:
197ABCL has withdrawn its claims for confidentiality pursuant to the Confidentiality Orders in respect of nominated documents related to the independent Batching Plant Customers for the period 1 July 2014 to 31 December 2017. Messrs Hosking, Salisbury and Pickard have been provided with the materials ‘withdrawn’ by ABCL.
198Messrs Hosking, Salisbury and Pickard remain unable to access information for the Independent Batching Plant Customers for the period 1 January 2018 to 30 April 2020. The specific type of information which I remain unable to provide to Messrs Hosking, Salisbury and Pickard in respect of the Independent Batching Plant Customers is summarised below.
199I remain of the view that the information for the period 1 January 2018 to 30 April 2020 is necessary for provision to my clients, and that a ‘tutoring exercise’ with regard to the information now available of the time period 1 July 2014 to 31 December 2017 is insufficient. As I explain further below, I have reached this view having regard to the:
(a)     nature of the confidential information sought to be protected, the general industry knowledge and significant changes in market conditions; and
(b)     significance of the information to my ability to properly advise my client and ensure the proper progression of the matter.
…
205In paragraph 28.2 of the Cross Claim, Hallett alleges that ABCL breached the Most Favoured Customer Term in respect of any Batching Plant Customer because (inter alia) it is to be inferred from ABCL's case in these proceedings that ABCL has wrongly construed the defined term ‘Customer’ in the 2014 CSA as not extending to Batching Plant Customers and thereby failed to properly apply clause 9.1 and 9.2 of the 2014 CSA. In response, ABCL alleges (in paragraph 14.2 of the Defence to Cross Claim) that a Customer under the CSA, as properly understood and interpreted was a person who batched and supplied premix concrete to the construction industry in South Australia, in competition with Hallett.
…
Cement Australia
211In respect of Cement Australia, the Respondents are now able to access (in general terms):
(a)     the contracts entered into between ABCL and Cement Australia referred to in paragraph 375(b) of the Defence to Cross Claim ; and
(b)     documentation regarding pricing in the period 1 July 2014 to 31 December 2017, including information relating to rebates, invoices (in ABL.0481 and ABL.0482 in this period), adjustments and adjustment notification forms with supporting documentation.
212The documents in respect of Cement Australia regarding which ABCL maintains confidentiality, and the Respondents continue to seek access are:
(a)     invoices (ABL. 0931, ABL. 0936, ABL. 0938, ABL. 0939, ABL. 0940, ABL. 0941), adjustments (ABL. 0914, ABL. 0945, ABL. 0946, ABL. 0951, ABL. 0953), supply reports and COPA reports (ABL. 0481 and ABL. 0482) for the period 1 January 2018 to 30 April2020 tin respect of which ABCL's claims were only partially withdrawn);
(b)     adjustment request forms (ABL. 1460, ABL. 1461, ABL. 1497); and
(c)     information regarding ad hoc supplies in 2018, including as discovered in ABCL's Tenth List of documents (ABL. 1792, ABL. 2052 to ABL. 2085 (inclusive) and ABL. 2377 to ABL. 2440). These documents are also relevant to ABCL's loss case and in particular, category 22 of the Respondents Application for the reasons explained in paragraph 156 to 162 of 13 Robinson.
213The allegations advanced in the Cross Claim - Revision 4 relate to:
(a)     pricing from ABCL to Cement Australia/Hanson/Holcim in July 2014 to December 2014 (Cross Claim, paragraph 37,191);
(b)     a swap arrangement in April and May 2018, as pleaded in 37.19.2 and 37.19.3 of the Cross Claim);
(c)     a further swap ongoing swap arrangement through the Relevant Period, as alleged in paragraph 37.19.4 of the Cross Claim.
214In the period after 1 January 2018, ABCL adopts the position that, in effect, no relevant supplies of Product occurred to Cement Australia, Hanson or Holcim. In this respect, ABCL's position is:
(a)     in its Defence to Cross Claim that ABCL supplied cement to Cement Australia pursuant to three agreements, the latest of which expired on 31 December 2014 (paragraph 37.5(b)); and
(b)     in 14 Walsh at paragraph 112 to 115, from which the inference arises that only ‘ad hoc’ supply arrangements were in place between ABCL and Cement Australia in the period after 1 January 2018.
215ABL.0481 records the following transactions for Cement Australia in the period 2019 to 2020:
(a)     2018 – GP Cement 10,469.95 tonnes (in April/May 2018); Premium Cement Type GB Bulk – 2,488.60 tonnes; Brightonlite Cement type HE Bulk – 2,593 tonnes;
(b)     2019 – GP Cement 1,320 tonnes; Premium Cement Type GB Bulk 2,205.40 tonnes; Brightonlite Cement Type HE Bulk 1,680.35 tonnes; and
(c)     2020 – Premium Cement Type GB Bulk 802 Tonnes; Brightonlite Cement Type HE bulk 525.95 tonnes.
216I observe that Cement Australia now supplies cementitious products to the market in its own right. In May 2020 (following termination of the 2014 CSA), Cement Australia quoted for supply of cementitious products to Hallett, including GP cement at approximately $190/tonne (DEF.001.013.4587 and DEF.001.013.4606).
…
Boral
218In respect of Boral, Messrs Salisbury, Hosking and Pickard now have access to material for the period 1 July 2014 to 31 December 2017. The information which Messrs Salisbury, Hosking and Pickard have been permitted to access regarding Boral in the limited time period includes:
(a)     extracts of ABL.0481 (SAP invoice and adjustment extract) and ABL.0482 (COPA Report);
(b)     Bulk Cement Supply Agreement – South Australia dated 21 February 2014 (ABL.0498);
(c)     Cement Supply Agreement (2016 South Australia and New South Wales) dated 10 November 2016 (ABL.0499);
(d)     Cement Supply Agreement (2016 South Australia) (ABL.0050);
(e)     invoices, adjustments, price lists, project pricing letters, diversion dockets for the limited time period; and
(f)     correspondence between ABCL and Boral regarding usage of GP cement pursuant to the ‘swap’ arrangements.
219While access to this information assists, Thomson Geer remains constrained and are unable to provide our clients any information regarding the pricing and arrangements that were in place between ABCL and Boral from 1 January 2018 to 30 April 2020.
220The information which I remain constrained from providing to Messrs Salisbury, Hosking and Pickard in respect of Boral is outlined below.
[The paragraph specifies eight classes of documents concerning pricing and invoicing arrangements]
…
South East SA customers
225Paragraph 40 of the Cross Claim advances allegations against customers located in the South East region of South Australia, including customers such as Lucindale, Clark Bros, Dickers Robe, Southern Contracting and Bleasby.
226I have been able to provide my clients with
(a)     transaction reports for H & F Dicker Son Pty Ltd (ABL.0971); CK & JG Clarke (ABL.0972); and Jamestown Concrete (ABL.0971); and
(b)     documentation regarding pricing in the period 1 July 2014 to 31 December 2017, including information relating to rebates, invoices (in ABL.0481 and ABL.0482 in this period), adjustments and an adjustment notification form (ABL.1477).
227I remain unable to provide copies of critical documents in respect of pricing to these customers, including:
(a)     pricing information, as contained in the Customer Invoice Report (ABL.0481), the COPA report (ABL.0482), invoices (ABL.0930, ABL.0934, ABL.1143); adjustments (ABL.0940, ABL.1139, ABL.1140, ABL.1144) for the period 1 January 2018 to 30 April 2020, which information is critical to the allegations of breach against those customers; and
(b)     a supply agreement between ABCL and Lucindale Concrete (ABL.0513) and letter of termination which took effect from 27 March 2019 (ABL.0514). Given I understand the supply agreement has now terminated, it is unclear why I cannot provide this document to my clients.
228I remain constrained in my ability to properly seek instructions from my clients by reason of being unable to disclose this information.
…
Direct Mix and/or Southern Quarries
233Paragraph 42 of the Cross Claim contains allegations in respect of ABCL’s pricing to Direct Mis and/or Southern Quarries.
234I have been able to provide my clients with:
(a)     documents evidencing invoices, adjustments and rebates purportedly offered by ABCL to Direct Mix and/or Southern Quarries in the period 1 July 2014 to 31 December 2017, including documents relating to project pricing; transaction reports; certain intercompany loan account documents (ABL.1444 and ABL.1445); diversion dockets and extracts of ABL.0481 and ABL.0482 for this limited time period; and
(b)     Supply Agreement between ABCL and Direct Mix dated 13 December 2010 (ABL.1541), which had a three year term.
235The information in respect of Direct Mix and/or Southern Quarries that I remain unable to provide to Messrs Hosking, Pickard and Salisbury includes:
(a)     invoices (ABL.0933, ABL.0942), adjustments (ABL.0948, ABL.0957, ABL.1721, ABL.1722) invoice report (ABL.0481) and COPA report (ABL.0482) for the time period 1 January 2018 to 30 April 2020;
(b)     monthly statements issued by ABCL to Direct Mix and/or Southern Quarries (and others) for the period 1 January 2018 to 30 April 2020;
(c)     correspondence relating to project pricing rebates issued by ABCL to Direct Mix/Southern Quarries in respect of:
(i)Northern Connector Project. A ‘project pricing letter’ issued by ABCL to Direct Mix on 9 March 2017 (ABL.0705) and a further letter on 9 November 2018 (ABL.0774, ABL.1296). ABL.04881 shows the last rebate issued in respect of this project was issued in respect of December 2018. There are a further two rebates recorded on 31 May 2019, however the rebate descriptions are ‘Jan 2018’ and the amounts are for-$27.30 and -$10.14 respectively.
(ii)354 Bowden Project. A ‘project pricing letter’ was issued by ABCL to Direct Mix on 22 August 2018 (ABL.0767). ABL.0481 shows the last rebate was issued in respect of this project on 9 January 2019, and is stated to be ‘354 Bowden - December 2018’;
(d)     related communications (both internally in ABCL and externally with Direct Mix/Southern Quarries) in relation to ‘project pricing’. These documents include:
(i)documents relating to project pricing on Northern Connector in 2017, namely ABL.1283, ABL.1285, ABL.1288, ABL.1289 and attachment ABL.1290, and ABL.1291; and
(ii)other documents in relation to project pricing in the period 1 January 2018 to 31 December 2018, namely: ABL.1292, ABL.1293, ABL.1295, ABL.1297, ABL.1298 and attachment ABL.1299, ABL.1300 and ABL.1301;
(e)     price notification adjustment letters, including letters dated 23 January 2019 (ABL.0775); and 29 March 2019 (ABL.0780);
(f)     documents relating to pricing in 2019, namely ABL.1302, ABL.1304, ABL.1305, ABL.1306, ABL.1307 and ABL.1308;
(g)     pricing in 2020, including a project pricing letter dated 2 April 2020 for Ballestrin - Osborne Stage 1 & 2 (ABL.1309, ABL.1310, ABL.1311). Ballestrin's capability statement indicates that this project was completed in April 2021. Annexed hereto and marked ‘CJR-219’ is a true copy of this capability statement;
(h)     adjustment request forms in respect of the rebates issued to Direct Mix in the period 1 January 2018 to 30 April 2020, including ABL.1483, ABL.1498 and price maintenance notification forms (ABL.1807; ABL.1808 and ABL.1809);
…
237Without the ability to provide the documents in paragraph 235 to my clients, I cannot inform my clients regarding possible claims against Direct Mix in the period 1 January 2018 to 30 April 2020, nor seek instructions in respect of the same.
238Given the information relating to the pricing charged by ABCL to Direct Mix/Southern Quarries is of fundamental significance to the proceedings, and having regard to the diminished degree of confidentiality, it is appropriate that Court permit Messrs Hosking, Pickard and Salisbury to access the information sought.
Turners
239The allegations in paragraph 43 of the Cross Claim relate to the pricing charged to Turners in the period 1 May 2017 to September 2018.
240I have now been able to provide Messrs Hosking, Pickard and Salisbury with information regarding the invoices, adjustments and rebates offered to Turners in the period 1 July 2014 to 31 December 2017, including extracts of ABL.0481 and ABL.0482 for this time period and invoices, adjustments and monthly statements purportedly issued by ABCL to Turners in this period.
241I remain unable to provide the following information to Messrs Hosking, Pickard and Salisbury which is fundamental to the assessment of the claim insofar as it relates to the period after 1 January 2018.
(a)     the Bulk Product Supply Agreement between ABCL and Turners Ready Mix dated 1 June 2003 (ABL.0515);
(b)     pricing information contained in the invoices (ABL.0944), invoice report (ABL.0481) and the COPA report (ABL.0482) for the period after 1 January 2018 (given ABCL's claim for confidentiality were only partially withdrawn in respect of these customers);
(c)     monthly statements in this period, including in respect of Turners; and
(d)     a settlement deed between ABCL and the Turners (ABL.2050).
242The nature of the allegations against Turners is in respect of a rebate being provided by way of a freight charge. ABCL's evidence previously is that the freight charges are recorded in ABL.0482 (the COPA report). It is necessary to provide my clients with (a) the terms of supply between ABCL and Turners; (b) information regarding the price charged by ABCL to Turners; and (c) information regarding the freight charges as contained in the COPA report, in order to properly advise my clients in respect of the claim against Turners on a monthly basis.
243A ‘tutoring’ exercise does not assist given the terms of supply are not known to my clients and pricing changes on a monthly basis.
APPENDIX III
Market Movements
147 As I explain below, the contractual arrangements for the Batching Plant Customers which were in place for the time periods relevant to the Cross Claim, in almost all cases, do not continue to subsist to this day, but rather other arrangements have been entered into such that the confidentiality of any information therein has either been substantially diminished or completely eroded.
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151The supply of cementitious materials to Prominent Hill are subject to (at least) the following different arrangements:
(a)     Contract between ABCL and OZ Minerals Prominent Hill Operations Pty Ltd dated 3 December 2012 for the supply of general purpose (GP) cement, bulk cementitious binder Of required) and other cement products (if and as agreed by the parties) (ABL. 0487). The contracted price for these goods was $189 for GP and $152 for bulk cementitious binder (Schedule 5 - Price, page 54) (2012 OZ Minerals Agreement).
(b)     Agreements in respect of the supply of cement to OZ Minerals Paste Fill Plant - agreements dated 1 July 2013, 25 June 2014, 1 October 2014 and 1 April 2018 (ABL. 0488, ABL. 0489, ABL. 0490, ABL. 0491) (0z Minerals Paste Fill Agreements).
(c)     Agreement between ABCL and Jetcrete OZ Pty Ltd in March 2014 in relation to the supply of GP ‘shotcrete’ volume (as is referred to in ABL.1917), however this agreement has not been discovered. The Respondents seek discovery of this document as referred to above).
(d)     supply by SAPCC to Jetcrete OZ Pty of GP cement in the period from approximately February 2018 until approximately October 2019. During this period, SAPCC was supplying Jetcrete with GP Cement at the following prices:
(i)in the period from February 2018, $280 / tonne delivered to Prominent Hill (or $205.24 p/t ex words) (DEF.001.001.0540); and
(ii)from July 2019, $259/t delivered, or $184.24 ex works which supply continued until approximately October 2019 (DEF.001.003.5167).
(e)     Goods and Services Agreement for Supply of Cementitious Material to Prominent Hill Mine Site between Oz Minerals and ABCL dated 7 May 2019 (ABL.0492) (Oz Minerals Prominent Hill Agreement). As is stated in ABCL’s Management Performance Report to the Board (ABL.2024), ABCL positioned its proposal with Oz Minerals to supply all requirements of GP cement for the Prominent Hill project directly to OZ Minerals. Further information regarding the ‘issue’ arrangements between OZ Minerals and Jetcrete are explained in subsequent management reports, including in Cement & Lime Sales and Marketing Monthly Report dated June 2019 which states ‘OZ Minerals contract for supply of cement, aggregates & sand decision awarded to ABC. Finalizing the free issue of GP Cement for Jetcrete ~ 70kt pa (feedback from Jetcrete they are almost ready to change)’ (ABL. 1946) and in ABL. 0371, ABL. 1773. ABL. 1948 states that the supply for cement to pH Jetcrete will commence on I November 2019.
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168On 10 September 2020, Adbri Ltd announced that it had entered into a 4-year contract extension for the supply of cement and lime to BHP’s Olympic Dam mine in South Australia. Exhibited hereto and marked ‘CJR-212’ is a true copy of that announcement.
169I observe that the terms of the ‘contract extension’ has not been discovered by ABCL in these proceedings. Accordingly, the terms of the current supply arrangements between ABCL and BHP are not known by me, nor any solicitors who are part of the confidentiality regime. If the documents relating to BHP currently marked as ‘confidential’ were able to be accessed by the Respondents, the current supply arrangements (including price) would likewise not be known by Messrs Hosking, Pickard and Salisbury.
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178Mr Miller’s evidence fails to address a number of matters which are fundamental to an assessment of the degree confidentiality of that information in 2023. Those matters include the following:
(a)     Hallett’s allegations in respect of Exact Mix relate to the purchase of product by Exact Mix for us in the manufacture of premix concrete at and about Olympic Dam. In its Defence to Cross Claim, ABCL admits that it supplied GP cement to Exact Mix for use ‘in the production of shotcrete’ at its Olympic Dam mine until 30 April 2018 (paragraph 30.1, Defence to Cross Claim).
(b)     Consistent with ABCL’s plea in paragraph 30.1 of the Defence to Cross Claim, the documents discovered by ABCL in these proceedings demonstrate that the majority of ABCL’s supplies to Exact Mix occurred in the period from 1 July 2014 to 30 April 2018 (4,253 supplies). These are the supplies which underpin the allegations now pleaded in paragraph 30 of the Cross Claim – Revision 4.
(c)     From May 2018 onwards, ABCL ceased supplying cementitious products to Exact Mix for use at Olympic Dam. Instead, ABCL began supplying directly to BHP (and BHP’s subsidiaries). This is evidence in confidential document ABL.1421. There were only 57 supplies made by ABCL to Exact Mix in the period from May 2018 to 30 April 2020.
(d)     Mr Miller states ABCL’s ‘invoiced price’ to Exact Mix on 1 July 2014 was $203.10. however, this price was subject to a rebate. When that rebate is taken into account, the price charged by ABCL to Exact Mix on 1 July 2014 was $160/tonne, as it alleged in paragraph 30.4 of the Cross Claim. This is consistent with the rebate arrangement in place, as is documented in ABL.1317. Exhibited hereto and marked CJR-213 is an extract of ABL.0479, showing the ‘invoice’ worksheet for the entire Relevant Period.
(e)     Mr Miller states the ‘invoiced price’ to Exact Mix on 27 April 2020 was $244.10. Exhibited hereto and marked CJR-214 is an extract of the ‘MiningInvoice’ and ‘MiningAdjustment’ worksheet of ABL.0479 for Exact for 2020, which shows sales with a net price at $244.10. Based on the documentation discovered by ABCL, it does not appear that this invoice was subject to any equivalent rebate, given BHP was purchasing its own cementitious needs for Olympic Dam directly from ABCL by this date. The ‘adjustment’ worksheet contained in CJR-214 shows:
(i)No ‘OD shotcrete rebate’ being issued after April 2018; and
(ii)no rebates or adjustments at all recorded to Exact Mix post December 2019.
(f)     Accordingly, it appears the price being charged by ABCL to Exact Mix had materially differed from $160 in July 2014, to $244.10 in April 2020. In April 2020, Hallett was being charged $160 per tonne (ex works, ex GST) for Type GP cement.
179As a result of the matters I refer to in paragraph 178, I observe the following:
(a)     the supply arrangements between BHP and Exact Mix for Olympic Dam ended over 4 years and 8 months ago.
(b)     the terms of supply, volumes of supply and the price of such supply for the Olympic Dam project were replaced by the contractual arrangements which were subsequently entered into between ABCL and BHP on 17 April 2018; and
(c)     the arrangements subsequently entered into between ABCL and BHP, including the price charged by ABCL to BHP for supply of GP Cement to Olympic Dam, are different and in any event those arrangements have now been superseded too, as I explain in paragraph 168.
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190On 11 February 2022, Adbri Ltd announced that it had signed an agreement with OZ Minerals Ltd for the supply of cementitious materials to the OZ Minerals Carrapateena mine in South Australia for a three-year term, with options to extend to 2027. In that announcement, Mr Nick Miller stated that ‘This contract is in addition to our existing agreement to supply the Oz Minerals Prominent Hill Mine …’. Exhibited hereto and marked ‘CJR-217’ is a true copy of that ASX announcement.
191Given Downer EDI has exited the mining sector and new arrangements have been put in place with OZ Minerals in relation to the supply of the Carrapateena mine:
(a)     if the invoiced price charged by ABCL to Downer EDI in the period up to April 2020 was disclosed, the Respondents would not know whether that price remained commercially relevant to the supply to the Carrapateena mine; and
(b)     the information would not be of use to the Respondents in dealing with Downer EDI in putting offers or proposals to that customer, as Mr Miller suggests, because Downer EDI has exited the industry.
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196Given the project has now completed and market conditions have shifted since completion in early 2020, as I explain further below, the confidentiality of pricing information regarding the supplies to Lendlease on the project has diminished with the passage of time and given the importance of the information to the proper progression of the matter, my client should be permitted to access this information.
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200Mr Miller deposes at paragraph 73 of the Miller Affidavit that information before ‘1 January 2018’ is of less commercial significance today. In paragraph 74 of the Miller Affidavit, Mr Miller deposes that pricing information for the independent batching plant customers is ‘very highly confidential’ because independent batching for plant customers ‘may be more susceptible to being persuaded by competitors of ABCL to move their business away from ABCL to the relevant competitor.’ and that ‘in the vent the Respondents were appraised of pricing as applied by ABCL to its premix concrete customers after 1 January 2018, then SAPCC/the broader Hallett group would be able to use that information in endeavouring to solicit business.’
201I expect that the price being offered to Independent Batching Plant Customers has changed significantly since April 2020 having regard to the shifting market conditions. In this respect, I observe that Adbri Ltd (ABCL’s parent company) has made a number of public statements recently regarding changing prices having regard to present market conditions. Those statements are referred to below.
(a)     A presentation by Adbri Ltd to the UBS Australasia Conference 21 on 15 November 2021 states ‘Demand appears to be strong across all regions delivering higher than expected sales volumes. However, costs have largely offset the benefits of high volume. COVID impacts have resulted in higher costs through demurrage from disrupted shipping and operational performance has reduced cement production at Birkenhead, resulting in higher unit costs (currently being addressed).’
(b)     In an ASX Announcement dated 24 February 2022 of Adbri Ltd’s results presentation for the year ended 31 December 2021, Adbri Ltd stated ‘cement revenue increased by 12% driven by strong demand across all sectors and price increases in key markets – SA, WA and NSW’.
(c)     In the AGM address given by the CEO at Adbri Ltd’s AGM on 19 May 2022, the then-CEO made the following relevant comments regarding the changes in market conditions:
(i)‘However, the Group experienced a number of COVID-related earnings impacts including lockdowns, increased demurrage and the delayed return from drydock maintenance or our limestone supply ship, the MV Accolade.’
(ii)In respect of the outlook going forward, stated ‘targeted incremental gross savings of $10 million in 2022, will help mitigate cost increases for items such as pallets, shipping, fuel, labour and west coast gas. Since we last reported, the impact of the Ukrainian crisis on shipping and fuel in particular, has been evaluated. We are looking to recover fuel, and other inflationary cost increases, in July price increase for concrete and quarry products across all markets. For our cement and lime business most of our significant contracts have inbuilt fuel price recover mechanisms. Renewal of new cement and lime contracts are also seeing higher net selling prices to cover current inflationary cost pressures.’
(d)     The then-CEO of Adbri Ltd, Nick Miller foreshadowed ‘out of cycle’ price rises as a result of rising cost inputs in February 2022, as was reported in an article published by the Australian Financial Review on 25 February 2022.
(e)     In an ASX announcement on 22 August 2022 in respect of Adbri Ltd’s Results Presentation – Half year ended 30 June 2022, Adbir stated:
(i)‘underlying net profit after tax … down 1.3% on 1H21 impacted by: operational challenges associated with extreme wet weather events on the east coast of Australia; as anticipated lower lime volumes; higher raw materials, power, shipping, transport and fuel costs; partially offset by out-of-cycle price increases …’,
(ii)‘out-of-cycle cement price increases were implemented in August to mitigate further cost inflation’, and
(iii)‘electricity costs, driven by gas pricing, surged during the reporting period.’
(f)     The media release by ABCL accompanying its half-year results states:
(i)‘underlying NPAT decreased 1.3% to $54.3 million no 1H21. 1H22 was impacted by operational challenged associated with extreme wet weather events on the east coast of Australia; anticipated lower lime volumes; higher raw materials, shipping, transport, power and fuel costs; partially offset by our-of-cycle price increases and profit on property, plant and equipment sales’,
(ii)‘the Company has actively managed its pricing strategy to partially mitigate significant inflationary pressures …’, and
(iii)in respect of 2022 outlook ‘Further out of cycle price increases will assist Adbri in actively managing inflationary pressures, with pricing traction key to our ability to deliver’.
(g)     In August 2022, the Australian Financial Review, in an article titled ‘Abdri in $300m share price wipeout as costs surge’, reported as follows:
(i)‘The company could not lift the price of its products fast enough to stay in front of accelerating inflation. Chief executive Nick Miller said it would implement a third price increase for calendar 2022 on September 1’; and
(ii)‘Mr Miller said higher fuel and diesel costs were a $20 million hit, and there was a $3.5 million impost from ‘surge’ pricing in energy bills. Diesel prices were up 55% from the start of 2022.’
Exhibited hereto and marked ‘CJR-218’ are true copies of the documents to which I refer in paragraph 201.
Respondent’s knowledge as a result of 2014 CSA
202As is pleaded in paragraphs 12 and 13 of the Cross Claim, the 2014 CSA provided that the price Hallett would pay for Product would be the lower of:
(a)     the price for a given Product as notified by ABCL from time to time (ABCL's Notified Price); and
(b)     the Comparison Price. Comparison Price is defined as ‘the lowest netprice per tonne charged by the Seller [ABCL] for that type of Product supplied by the Seller to Customers in South Australia that was delivered during the same month in which that delivery of Product was made to the Buyer [Hallett] under this Agreement’.
203Throughout the period from 1 January 2018 to 30 April 2020, Hallett was provided with price lists from ABCL from time to time (namely ABCL's Notified Price), adjusting the ‘ex-works’ pricing for product under the 2014 CSA. These price notifications are contained in ABL.0286.
204As is evident from Schedule 1 to the Cross Claim, the price charged by ABCL to Hallett for Type GP cement throughout that period varied as follows:

Period Price

1 January 2018 to 31 March 2018 $225.16

1 April 2018 to 30 November 2018 $235.16

1 December 2018 to 31 December 2018 $185.00

1 January 2019 to 1 March 2019 $175.00

1 April 2019 to 31 December 2019 $185.00

1 January 2020 to 30 April 2020 $160.00

Period	Price
1 January 2018 to 31 March 2018	$225.16
1 April 2018 to 30 November 2018	$235.16
1 December 2018 to 31 December 2018	$185.00
1 January 2019 to 1 March 2019	$175.00
1 April 2019 to 31 December 2019	$185.00
1 January 2020 to 30 April 2020	$160.00

[2023] SASC 86

31 May 2023