Atochem S.A. v Button, John Norman

[1984] FCA 305

Re: ATOCHEM S.A.
And: JOHN NORMAN BUTTON, THE MINISTER OF STATE FOR INDUSTRY AND COMMERCE
No. G166 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.

CATCHWORDS

Administrative Law - Practice and Procedure - company seeking to be made to an application pursuant to the ADJR Act for the purposes of protecting the alledged confidentiality of information supplied to it to the decision maker and of taking part in the trial - motion by respondeant also raising questions of confidentiality - discretion as to orders to be made in the circumstances.

Administrative Decisions (Judicial Review) Act 1977: s.12

HEARING

SYDNEY

#DATE 28:9:1984

ORDER

THE COURT ORDERS THAT

1. the motion of I.C.I. Australia Operations Pty.

Limited (Operations) dated 24 August 1984 be

dismissed, wiothout prejudice to any other moition

which it may seek to bring pursant to s.12 of the

respondant's motion filed on 14 September 1984.

1. Operations pay the applicant's taxed costs of its motion.

JUDGE1

By application dated 25 May 1984 Atochem S.A.

(the applicant) sought pursuant to the Administrative Decisions Judicial Review Act 1977 (the Judicial Review Act), to review the decision of the Honourable John Norman Button, the Minister of State for Industry and Commerce (the decision) that Section 8 of the Customs Tariff (Anti-Dumping) Act 1975 (the Act) applies to polyvinyl chloride general purpose homopholymer (not including paste or emulsion grades), which for simplicity I will call PVC, the export price of which is less than the amount of its normal value.

1. The applicant claimed to be an exporter of PVC from France to Australia. The decision which the applicant sought to review was made after an inquiry initiated in consequence of a complaint lodged by I.C.I. Australia Operations Pty. Limited (Operations) in conjunction with B.F. Goodrich Chemicals Pty., Limited (Goodrich) with the Department of Industry and Commerce (the department), in which Operations and Goodrich claimed that dumped imports of PVC were causing them injury and were threatening injury in the form of loss of sales and depressed sales which led and would continue to lead to loss of profitability by them.

2. Operations claimed that it was one of the two producers of PVC in Australia and that it was likely to suffer very substantial pecuniary loss if the decision of the respondent were quashed or set aside, as sought by the applicant.

3. By motion, notice of which was dated 24 August 1984, which was amended by leave on 7 September 1984. Operations sought the following orders:-
   
   

"1. that Operations be joined as the second respondent in this matter;

2. that on or before 21 September, 1984 Operations file in the Registry and serve upon the applicant and the respondent a list (agreed between Operations and the respondent) of the documents produced by Operations to the respondent or to officers of the Department of Industry and Commerce in the course of the investigation which led to the decision which is the subject of these proceedings, which comprise or contain any confidential information ("the list");

3. that on or before 28 September, 1984 the respondent file in the Registry and serve upon Operations and the applicant a list of all documents in his possession, power or control (other than documents specified in the List) containing any of the information appearing in any document in the List ("the supplementary List").

4. that any access to documents relating to these procedings which the respondent might give to the applicant, whether pursuant to an order of this Court or otherwise, be subject to the following terms:-

as to documents specified in the List or in the Supplementary List, the applicant by its solicitor and counsel to have access upon the filing of undertakings in Court by counsel for the applicant, his instructing solicitor and such other solicitors at Messrs. Allen Allen & Hemsley as may be associated with these proceedings not to disclose the contents of those documents to any person including the applicant and not to use those documents or the information contained in them for any purpose other than the conduct of these proceedings;

5. that without the leave of the Court, no affidavit shall be filed by the respondent containing any matter contained in a document specified in the List or in the Supplementary List;

6. that the provisions of Order 4 shall apply in relation to exhibits and copies of exhibits to affidavits filed or to be filed on behalf of the respondent containing any matter contained in a document specified in the List or in the Supplementary List;

7. that without the leave of the Court, no exhibits filed in Court containing any matter contained in a document specified in the List or in the Supplementary List are to be disclosed or published to any person including the applicant;

8. the applicant's solicitor and counsel may be relieved either wholly or in part from complying with the undertakings referred to in Order 4 by agreement in writing with the solicitor for Operations and the solicitor for the respondent.

9. Liberty to apply on 2 days notice in relation to any matter arising out of these orders."

1. On 7 September 1984 the application appeared in the directions list for what were described as run of the mill directions as between the applicant and the respondent. The court also had before it the motion of Operations. It was agreed between the parties that this motion, which was opposed by the applicant, should be heard before directions were discussed. Counsel for the respondent stated that his client neither consented to nor opposed the motion. Shortly afterwards he sought to be excused from attendance, stating that the motion was one "that we do not oppose or take any strong view about." He was excused on the basis that his instructing solicitor would remain in attendance.

2. Operations stated that it wished to support the decision and to ensure the protection of what it described as confidential information provided by it to the @department during the inquiry.

3. Late in the day on 7 September the solicitor for the respondent stated that his client had some views as to confidentiality and that if the motion by Operations did not succeed, other applications might be made with regard to discovery. Shortly afterwards he said that it was envisaged that there were some documents which in the normal course would be subject to discovery, for which his client would wish to claim confidentiality, but he had not yet ascertained which documents they were. The directions hearing and the motion of Operations were adjourned to 14 September.

4. On that day a notice of motion was filed on behalf of the respondent, seeking the following orders:-
   
   

1. The applicant by its solicitor and counsel have access to the Dumping Report No. 84/77 Polyvinyl chloride general purpose homo polymer from France, Spain, the Federal Republic of Germany, the Netherlands and the United Kingdom ("the Dumping Report") and Department of Industry and Commerce files relating to the Dumping Report ("the Departmental files") on or before 12 October 1984 subject to the following terms and conditions.

2. The respondent file and serve on or before 12 October 1984 a Schedule of those documents contained in the Dumping Report and the Departmental files for which an undertaking as to confidentiality is required.

3. Counsel for the applicant, his instructing solicitor and such other solicitors at Messrs Allen Allen and Hemsley associated with these proceedings file undertakings in Court that they will not disclose the contents of the documents set forth in the Schedule to any person including the applicant and that they will not use those documents or the information contained in them for any purpose other than the conduct of these proceedings.

4. No exhibits filed in Court by the respondent are until further order to be disclosed or published to any person including the applicant.

5. Counsel for the applicant and his instructing solicitor to be provided with copies of any exhibits to affidavits filed on behalf of the respondent upon the filing of undertakings in Court by counsel for the applicant his instructing solicitor and such other solicitors at Messrs Allen Allen and Hemsley associated with these proceedings that they will not disclose the contents of those exhibits to any person including the applicant and that they will not use those exhibits or the information contained in them for any purpose other than the conduct of these proceedings.

6. Counsel for the applicant, his instructing solicitor, and such other solicitors at Messrs Allen Allen and Hemsley associated with these proceedings may be relieved either wholly or in part from complying with the undertakings referred to in paragraphs 3 and 5 by agreement in writing with the respondent's solicitor.

7. Liberty to apply on 2 days notice."

1. The solicitor for the respondent stated that he needed time to prepare a list of documents for which undertakings of confidentiality would be sought and to file affidavits in support of the motion, which had not been drafted at that stage.

2. The applicant wished to have the motion of Operations
   decided, without waiting for the completion of the respondent's preparation for his motion.

3. The position taken by Operations was that it sought
   standing as a party to enable it to take any necessary steps throughout the interlocutory stages and the trial of the application to protect the confidentiality of the information which it had supplied to the respondent. It also wished to take part as a party in the trial, in the outcome of which it claimed a substantial interest, upon terms that would give it a right of appeal which it might exercise whether the applicant or the respondent wished to appeal or not.

4. The court raised for the consideration of the parties the question whether there might be some advantage in adjourning the motion of Operations until its advisers could see the complete material in support of the respondent's motion before deciding upon the course it wished to adopt. An adjournment was given so that Operations could consider this question, at the expiration of which it stated that it made no application for the adjournment of its motion. On 21 September the hearing of this motion was completed.

5. It appeared during the cross-examination of an officer of Operations, who had made an affidavit in support of its motion, that there had been some fluctuation in its attitude, and that at one recent stage it had not been interested in seeking to become a party for the purposes of supporting the decision, as distinct from seeking to be heard on the question of what it claimed to be confidential material supplied by it to the department.

6. In the course of the final address on behalf of Operations, the respondent's motion on discovery was recognized as being in substance identical with that of Operations, and it was said that, if the respondent obtained the orders which he sought, Operations would be content with that, so far as questions of confidentiality were concerned. Operations persisted in its claim to be added as a party with full rights to participate in the trial and the preparations for it.

7. Operations' motion was based upon s.12 of the Judicial Review Act which reads as follows:
   
   

" (1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.

(2) The Court may, in its discretion-

(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b) refuse the application."

1. The applicant put in issue the claims of Operations that it was a person interested in the decision, that it had received information from other sources on a confidential basis, that it was entitled to confidentiality in respect of material which it had provided to the department, including any information so received from other sources, and that it should be made a party to the application. It pressed for judgment on the motion of Operations upon each of these issues, so as to conclude them in its favour, once and for all.

2. In my opinion, it would not be a sound exercise of the court's discretion to determine any of these issues finally at the present stage of these proceedings. It was the claim of Operations for confidentiality which seems to have prompted it to move at this early stage of the application, and any urgency which that claim had has now been lost, by reason of the respondent's motion in relation to discovery. Without in any way speculating on the outcome of that motion, it is simply stating a logical possibility to say that, when it has been decided, there may be no point in Operations pursuing the question of confidentiality. Having regard to the answers of its officer in cross-examination, it may be that in such an event, it would re-examine its attitude to the question whether it should seek to be added as a party.

3. If the court had ordered that Operations be added as a party to the application, but limited its order at this stage so as to permit Operations to debate only the question of its claim to confidentiality, and had it gone on to decide that claim upon the merits, it would have done so on a motion to which the respondent was a party. Any judgment upon that motion may have given rise to the submission that it amounted to a bar to the respondent's own motion on discovery, which is not yet ready for hearing, and which the respondent wishes to support by affidavits which have not yet been prepared. In my opinion, the better course for the court to follow in the exercise of its discretionary control over interlocutory proceedings is to dismiss the motion of Operations, on terms which place no obstacle in the path of any fresh motion which Operations may seek to advance, after there has been a decision by any judge of the court upon the respondent's motion in respect of discovery.

4. The court orders that:-
   
   

1. the motion of Operations dated 24 August 1984 be dismissed, without prejudice to any other motion which it may seek to bring pursuant to s.12 of the Act, after the court has decided the outcome of the respondent's motion filed on 14 September 1984.

2. Operations pay the applicant's taxed costs of its motion.

1. The respondent sought no order for his costs and none is made in respect of them. The respondent's motion and any further motion of Operations may be heard by any judge of the court.