Aibi Holdings Pty Ltd v Virtual Technology Services Pty Ltd (Notice to Produce Confidential Documents)

[2022] FCA 675

FEDERAL COURT OF AUSTRALIA

AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd (Notice to Produce Confidential Documents) [2022] FCA 675  

File number:

NSD 177 of 2021

Judgment of:

PERRAM J

Date of judgment:

11 April 2022

Date of publication of reasons:

8 June 2022

Catchwords:

PRACTICE AND PROCEDURE – notice to produce – where documents subject to notice contain confidential information – whether Respondent required to produce documents – whether documents produced should be redacted

Legislation:

Federal Court of Australia Act 1976 (Cth)

Cases cited:

Betfair Pty Ltd v Racing New South Wales (No 15) [2010] FCA 736

Hearne v Street [2008] HCA 35; 235 CLR 125

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

6

Date of hearing:

11 April 2022

Counsel for the Applicant:

Mr W Soon

Solicitor for the Applicant:

Avantro

Counsel for the Respondent:

Mr J O’Sullivan

Solicitor for the Respondent:

Quest Legal Pty Ltd

ORDERS

NSD 177 of 2021

BETWEEN:

AIBI HOLDINGS PTY LTD ACN 619 923 125

Applicant

AND:

VIRTUAL TECHNOLOGY SERVICES PTY LTD ACN 141 194 470

Respondent

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	11 APRIL 2022

THE COURT ORDERS THAT:

1.The Respondent produce the documents specified in the Applicant’s Notice to Produce dated 25 February 2022 (‘the Notice’) as amended such that the relevant date of the documents in the Notice at paragraphs 1(a) and (b) is ‘1 October 2018 – 1 October 2019’.

2.The Respondent is to produce those documents within 3 days to the Court.

3.The matter be listed for directions on 13 April 2022 at 9.30 am.

4.The Respondent pay the Applicant’s costs of this application as taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

PERRAM J:

1. By an interlocutory application dated 7 April 2022, the Applicant seeks orders that the Respondent produce documents specified in a notice to produce dated 25 February 2022.  The view between the parties concerns whether the Respondent is entitled to redact certain parts of the documents which are the subject of the notice to produce.  The Respondent says that it should be entitled to produce the documents in redacted form because the redactions protect confidential information of the Respondent’s clients. 

2. I do not accept that that provides a basis for the redactions which have been sought.  The documents in question are subject to the implied undertaking referred to in Hearne v Street [2008] HCA 35; 235 CLR 125 (‘Hearne’) although in some circumstances the Court will order an augmented confidentiality regime above and beyond the Hearne obligation: see, for example, Betfair Pty Ltd v Racing New South Wales (No 15) [2010] FCA 736.

3. The evidence does not come close to establishing that kind of confidentiality.  The Respondent submitted that the Applicant’s concern was driven by the fact that the Respondent’s clients were concerned that their confidential information would be released, and that that would cause them to take their business elsewhere.

4. I do not think this is a legitimate concern.  The contractual obligation upon which the Respondent relies, in fact, indicates that the Respondent was obliged to inform the clients if confidential information was going to be disclosed: see cl 13.4.  Mr O’Sullivan, Counsel for the Respondent, informed me that this had not occurred.  In that circumstance, it seems to me, difficult to infer that the clients will subsequently find out about this.  In any event, to the extent that any of the Applicant’s clients are concerned about the provision, in this litigation, of the information in question, those clients are perfectly at liberty to make third party applications to me for suppression orders under the terms of the Federal Court of Australia Act 1976 (Cth), bearing in mind, however, the fairly high threshold necessary to be achieved for the granting of orders of that kind. In that circumstance, I grant the orders sought by the Applicant in its interlocutory application in orders 1, 2 and 3.

5. I will make orders 1, 2 and 3.  I direct that the notice to produce be returnable before me at 9.30 am on Wednesday, 13 April 2022.  That brings us to the question of costs. 

6. I propose to order that the Respondent pay the Applicant’s costs of the interlocutory application as taxed or agreed. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       8 June 2022