Australian Competition and Consumer Commission v Air New Zealand Ltd (No 4)

[2012] FCA 1439

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Air New Zealand Limited (No 4) [2012] FCA 1439

Citation:

Australian Competition and Consumer Commission v Air New Zealand Limited (No 4) [2012] FCA 1439

Parties:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AIR NEW ZEALAND LIMITED (ARBN 000 312 685)

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v P.T. GARUDA INDONESIA LTD (ARBN 000 861 165)

File numbers:

NSD 534 of 2010
NSD 955 of 2009

Judge:

PERRAM J

Date of judgment:

18 December 2012

Catchwords:

PRACTICE AND PROCEDURE – Suppression order – application by third parties for orders under former s 50 of the Federal Court of Australia Act 1976 (Cth) for the suppression of documents obtained by the applicant through compulsory processes – whether former s 50 allows a ‘balancing’ of competing factors – whether documents sufficiently commercially sensitive and current – whether orders should be made

Legislation:

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) s 2, sch 2 (cll 4, 5, 12(1))
Competition and Consumer Act 2010 (Cth) s 155
Federal Court of Australia Act 1976 (Cth) s 50(1), pt VAA
Trade Practices Act 1974 (Cth) s 155

Cases cited:

Australian Broadcasting Corporation v Parish (1980) 43 FLR 129; [1980] FCA 33 cited
Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 cited
Australian Competition and Consumer Commission v MSY Technology Pty Ltd(No 2) (2011) 279 ALR 609; [2011] FCA 382 cited
Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976 cited
Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd [2012] FCA 1395 cited
Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 applied
Hogan v Australian Crime Commission (2010) 240 CLR 651 applied

Date of hearing:

7 December 2012

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Applicant:

J Halley SC, E Collins SC, J Clarke, C Arnott, J Clark, N Shaw, V Bosnjak, T Dinh

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for Air New Zealand:

RM Smith SC, NJ Owens, RA Yezerski

Solicitor for Air New Zealand:

Corrs Chambers Westgarth

Counsel for Garuda:

M Leeming SC, T Brennan

Solicitor for Garuda:

Norton White

Counsel for Singapore:

S Free

Solicitor for Singapore:

Minter Ellison

Counsel for Qantas:

D Ross

Solicitor for Qantas:

Johnson Winter Slattery

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 534 of 2010

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	AIR NEW ZEALAND LIMITED (ARBN 000 312 685) Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	18 DECEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to former s 50 of the Federal Court of Australia Act 1976 (Cth), the documents listed in the schedule to these orders and marked ‘A’ not be published other than to:

(a)  The applicant;

(b)  The external legal representatives of the parties;

(c)  Any independent expert retained by the parties; and

(d) The Court.

2.Pursuant to former s 50 of the Federal Court of Australia Act 1976 (Cth), the documents listed in the schedule to these orders and marked ‘B’ not be published other than to:

(a)  The applicant;

(b)  The external legal representatives of the parties;

(c)  Any independent expert retained by the parties; and

(d) The Court.

3.The operation of Orders One and Two in respect of each document listed in each schedule be suspended until such time as the applicant tenders that document.

4.If an application for leave to appeal from Order One is filed on or before 5 February 2013, Order One expire at 5 pm on the day on which the application for leave to appeal is heard.

5.If no application for leave to appeal from Order One is filed on or before 5 February 2013, Order One expire at 5 pm on 6 February 2013.  

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

Schedule A

Tab in Exhibit BW-1	Document ID	Document description	Para in affidavit of Brenton Wu
1	SQC.100.900000104	Agreement of Understanding between Seagate Technology, SIAC and Fritz Logistics, dated 1 November 2002	10(i)
2	SQC.100.900000126	Annex B.10 – Location, Agreed Services, and Charges to the Standard Ground Handling Agreement of April 1998, effective from 1 November 2005 between SIAC and Patrick Cargo Pty Limited	10(ii)
3	SQC.100.900000476	Service Level Agreement between SIAC and Qantas Airways Limited dated 16 May 2002	10(iii)
4	SQC.100.900000055 SQC.100.900000056	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2003-2004 operating permit	11(iii)
5	SQC.100.900000060 SQC.100.900000061	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2005 operating permit	11(iii)
6	SQC.100.900000064 SQC.100.900000065	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2001-2002 operating permit	11(iii)
7	SQC.100.900000068 SQC.100.900000069	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2002 operating permit	11(iii)
8	SQC.100.900000072 SQC.100.900000073	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2004-2005 operating permit	11(iii)
9	SQC.100.900000076 SQC.100.900000077	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2002-2003 operating permit	11(iii)
10	SQC.100.900000080 SQC.100.900000081	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2004 operating permit	11(iii)
11	SQC.100.900000084	Operating permit	11(iii)
12	SQC.100.900000087 SQC.100.900000088	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer 2006 operating permit	11(iii)
13	SQC.100.900000098 SQC.100.900000099	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer 2005 operating permit	11(iii)
14	SQC.100.900000012	Summer 2003 operating permit	11(iii)
15	SQC.100.900000235	Singapore Airlines Cargo Marketing Report Hong Kong Performance for September 2005	12(i)
16	SQC.100.900000240	Singapore Airlines Cargo Marketing Report - Jakarta - Performance for July 04	12(i)
17	SQC.100.900000246	Singapore Airlines Cargo Marketing Report - Jakarta Performance for June 2004	12(i)
18	SQC.100.900000269	Singapore Airlines Cargo Marketing Report - Hong Kong - Performance for July 2004	12(i)
19	SQC.100.900000281	Singapore Airlines Cargo Marketing Report - Hong Kong - Performance for June 2004	12(i)
20	SQC.100.900000298	Singapore Airlines Cargo Marketing Report - Singapore - SIN - Performance for June 2004	12(i)
21	SQC.100.900000320	Singapore Airlines Cargo Marketing Report - Singapore - SIN - Performance for September 2004	12(i)
22	SQC.100.900000333	Singapore Airlines Cargo Marketing Report Singapore - SIN - Performance for October 2005	12(i)
23	SQC.100.900000339	Singapore Airlines Cargo Marketing Report Singapore - SIN - Performance for September 2005	12(i)
24	SQC.136.500025073	Singapore Airlines Cargo Marketing Report Jakarta Performance for Jul 05	12(i)
25	SQC.134.500000136	Internal SIAC email dated 4 October 2001 related to the application of the insurance surcharge in Hong Kong	12(iii)
26	SQC.123.900000207	1 - Possible Sales Activities to Expand WOW Business More in Japan - Case Study	12(iv)
27	SQC.123.900000208	Minutes of WOW Japan Meeting	12(iv)
28	SQC.123.900000210	Approved Minutes by Wow-Japan	12(iv)
29	SQC.123.900000212	WOW Quarterly Performance Report	12(iv)
30	SQC.139.900000009	Untitled WOW document	12(iv)
31	SQC.139.900000069	Australia	12(iv)
32	SQC.139.900000114	Japan	12(iv)
33	SQC.139.900000128	WOW Action Plan 2003 - Mango - Singapore	12(iv)

Schedule B

1.1.the HKD rate figure stated in the first line of the numbered paragraph 2 under the heading "Part A" on page 2 of the document coded ACCC.001.512.0001 (the Block Space Agreement);

1.2.the HKD rate and total figures stated in the fourth line of the numbered paragraph 3 under the heading "Part A" on page 2 of the Block Space Agreement;

1.3.the HKD rate and total figures stated in the sixth line of the numbered paragraph 4 under the heading "Part A" on page 2 of the Block Space Agreement; and

1.4.the HKD rate figures stated in the third line of the numbered paragraph 2 under the heading beginning "Addendum to BSA ... " on page 4 of the Block Space Agreement; 

1.5.the entire paragraph at the fifth bullet point on page 2 of the document coded ACCC.001.513.0077 (the 2002 MOU), commencing with the words "Qantas will..."; and

1.6.the entire column, including the heading and figures, set out on the far right hand side of Attachment "A" on page 4 of the 2002 MOU.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 955 of 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	P.T. GARUDA INDONESIA LTD (ARBN 000 861 165) Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	18 DECEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to former s 50 of the Federal Court of Australia Act 1976 (Cth), the documents listed in the schedule to these orders and marked ‘A’ not be published other than to:

(a)  The applicant;

(b)  The external legal representatives of the parties;

(c)  Any independent expert retained by the parties; and

(d) The Court.

2.Pursuant to former s 50 of the Federal Court of Australia Act 1976 (Cth), the documents listed in the schedule to these orders and marked ‘B’ not be published other than to:

(a)  The applicant;

(b)  The external legal representatives of the parties;

(c)  Any independent expert retained by the parties; and

(d) The Court.

3.The operation of Orders One and Two in respect of each document listed in each schedule be suspended until such time as the applicant tenders that document.

4.If an application for leave to appeal from Order One is filed on or before 5 February 2013, Order One expire at 5 pm on the day on which the application for leave to appeal is heard.

5.If no application for leave to appeal from Order One is filed on or before 5 February 2013, Order One expire at 5 pm on 6 February 2013. 

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

Schedule A

Tab in Exhibit BW-1	Document ID	Document description	Para in affidavit of Brenton Wu
1	SQC.100.900000104	Agreement of Understanding between Seagate Technology, SIAC and Fritz Logistics, dated 1 November 2002	10(i)
2	SQC.100.900000126	Annex B.10 – Location, Agreed Services, and Charges to the Standard Ground Handling Agreement of April 1998, effective from 1 November 2005 between SIAC and Patrick Cargo Pty Limited	10(ii)
3	SQC.100.900000476	Service Level Agreement between SIAC and Qantas Airways Limited dated 16 May 2002	10(iii)
4	SQC.100.900000055 SQC.100.900000056	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2003-2004 operating permit	11(iii)
5	SQC.100.900000060 SQC.100.900000061	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2005 operating permit	11(iii)
6	SQC.100.900000064 SQC.100.900000065	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2001-2002 operating permit	11(iii)
7	SQC.100.900000068 SQC.100.900000069	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2002 operating permit	11(iii)
8	SQC.100.900000072 SQC.100.900000073	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2004-2005 operating permit	11(iii)
9	SQC.100.900000076 SQC.100.900000077	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Winter Schedule 2002-2003 operating permit	11(iii)
10	SQC.100.900000080 SQC.100.900000081	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer Schedule 2004 operating permit	11(iii)
11	SQC.100.900000084	Operating permit	11(iii)
12	SQC.100.900000087 SQC.100.900000088	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer 2006 operating permit	11(iii)
13	SQC.100.900000098 SQC.100.900000099	Letter from the Hong Kong Civil Aviation Department to SIAC Hong Kong attaching Summer 2005 operating permit	11(iii)
14	SQC.100.900000012	Summer 2003 operating permit	11(iii)
15	SQC.100.900000235	Singapore Airlines Cargo Marketing Report Hong Kong Performance for September 2005	12(i)
16	SQC.100.900000240	Singapore Airlines Cargo Marketing Report - Jakarta - Performance for July 04	12(i)
17	SQC.100.900000246	Singapore Airlines Cargo Marketing Report - Jakarta Performance for June 2004	12(i)
18	SQC.100.900000269	Singapore Airlines Cargo Marketing Report - Hong Kong - Performance for July 2004	12(i)
19	SQC.100.900000281	Singapore Airlines Cargo Marketing Report - Hong Kong - Performance for June 2004	12(i)
20	SQC.100.900000298	Singapore Airlines Cargo Marketing Report - Singapore - SIN - Performance for June 2004	12(i)
21	SQC.100.900000320	Singapore Airlines Cargo Marketing Report - Singapore - SIN - Performance for September 2004	12(i)
22	SQC.100.900000333	Singapore Airlines Cargo Marketing Report Singapore - SIN - Performance for October 2005	12(i)
23	SQC.100.900000339	Singapore Airlines Cargo Marketing Report Singapore - SIN - Performance for September 2005	12(i)
24	SQC.136.500025073	Singapore Airlines Cargo Marketing Report Jakarta Performance for Jul 05	12(i)
25	SQC.134.500000136	Internal SIAC email dated 4 October 2001 related to the application of the insurance surcharge in Hong Kong	12(iii)
26	SQC.123.900000207	1 - Possible Sales Activities to Expand WOW Business More in Japan - Case Study	12(iv)
27	SQC.123.900000208	Minutes of WOW Japan Meeting	12(iv)
28	SQC.123.900000210	Approved Minutes by Wow-Japan	12(iv)
29	SQC.123.900000212	WOW Quarterly Performance Report	12(iv)
30	SQC.139.900000009	Untitled WOW document	12(iv)
31	SQC.139.900000069	Australia	12(iv)
32	SQC.139.900000114	Japan	12(iv)
33	SQC.139.900000128	WOW Action Plan 2003 - Mango - Singapore	12(iv)

Schedule B

1.1.the HKD rate figure stated in the first line of the numbered paragraph 2 under the heading "Part A" on page 2 of the document coded ACCC.001.512.0001 (the Block Space Agreement);

1.2.the HKD rate and total figures stated in the fourth line of the numbered paragraph 3 under the heading "Part A" on page 2 of the Block Space Agreement;

1.3.the HKD rate and total figures stated in the sixth line of the numbered paragraph 4 under the heading "Part A" on page 2 of the Block Space Agreement; and

1.4.the HKD rate figures stated in the third line of the numbered paragraph 2 under the heading beginning "Addendum to BSA ... " on page 4 of the Block Space Agreement; 

1.5.the entire paragraph at the fifth bullet point on page 2 of the document coded ACCC.001.513.0077 (the 2002 MOU), commencing with the words "Qantas will..."; and

1.6.the entire column, including the heading and figures, set out on the far right hand side of Attachment "A" on page 4 of the 2002 MOU.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 534 of 2010

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	AIR NEW ZEALAND LIMITED (ARBN 000 312 685) Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 955 OF 2009

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	P.T. GARUDA INDONESIA LTD (ARBN 000 861 165) Respondent

JUDGE:	PERRAM J
DATE:	18 DECEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In the lead-up to this trial, a number of third parties have produced documents either:

   (a)pursuant to subpoenas issued by this Court;

   (b)under discovery orders made by this Court; or

   (c)pursuant to notices issued by the Commission under s 155 of the former Trade Practices Act 1974 (Cth) or its broadly equivalent amended form, s 155 of the Competition and Consumer Act 2010 (Cth). (As to the relationship between these two acts – which are in fact the same act – see Australian Competition and Consumer Commission v MSY Technology Pty Ltd(No 2) (2011) 279 ALR 609; [2011] FCA 382 at [5]-[6].)

   These parties include Qantas Airway Limited (‘Qantas’) and Singapore Airlines Cargo Pte Ltd (‘Singapore’).  At earlier times, both were pursued by the Commission, but those proceedings have now been settled: see Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976 and Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd [2012] FCA 1395.

2. Nevertheless, the Commission proposes in the remaining two cases against Air New Zealand and Garuda to tender a number of Qantas and Singapore documents as part of its case. In respect of a small number of these documents, both Singapore and Qantas now seek the making of orders which would, if made, prevent those documents from being published to anyone apart from the Commission, its lawyers, any expert retained by the Commission, the lawyers and experts acting for Air New Zealand and Garuda, and the Court. At the time at which the application was heard (7 December 2012) such an order could be made pursuant to s 50(1) of the Federal Court of Australia Act 1976 (Cth), which was in these terms:

   The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

3. However, during the time in which I have been reserved on these applications, the provisions of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) have come into effect. That Act received the Royal Assent on 11 December 2012 and sch 2 commenced the next day: s 2. Clause 5 of sch 2 has the effect of repealing s 50 and cl 4 inserts Part VAA, which is now to deal with the question of suppression and non-publication orders: see Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430. This does not mean, however, that I should apply the new Part VAA on these applications; cl 12(1) of sch 2 provides that s 50 ‘continues to apply on and after [the date of sch 2’s commencement, i.e. 12 December 2012] in relation to a proceeding heard by the Court before that commencement’.

1. Former s 50 is concerned with evidence, not with the production of material at a stage anterior to its tender: cf. Cyclopet Pty Ltd v Australian Nuclear Science and Technology Organisation [2012] FCA 1326 at [25] per Jacobson J. The principles governing its exercise are clear and were comprehensively explained in Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]-[33] per curiam. The provision is enlivened either because it is necessary to avoid prejudice to the security of the Commonwealth or to the administration of justice. ‘Necessary’ is a strong word and the reference in former s 50 to the security of the Commonwealth shows that the provision is not concerned with trivialities: Hogan at [30], citing Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 at 133 (FLR) per Bowen CJ. Once the necessity appears, there is no balancing exercise to be engaged in; the order is simply to be made. This is because the word ‘may’ in former s 50 does not disclose the presence of a discretion: Hogan at [31]-[32]. So too, the standard required by former s 50 before the power is enlivened is that of ‘necessity’ and this is to be contrasted with, and distinguished from, less demanding standards, such as whether the order sought would be ‘convenient, reasonable or sensible’: Hogan at [31].

2. The orderly conduct of commerce can justify the conclusion that the interests of the administration of justice require the suppression of evidence: see Parish at 157-158 (FLR) per Bowen CJ. The revelation of trade secrets is perhaps one kind of example.

3. I turn then to the particular claims. Mr Free of counsel, who appeared for Singapore, submitted that the documents in respect of which a s 50 order was sought by Singapore fell into three categories. The first concerned what were termed ‘contractual materials’.  There were three of these:  SQC.100.900000104, SQC.100.900000126 and SQC.100.900000476.  These documents were dated 1 November 2002, 1 November 2005 and 16 May 2002 respectively.  All three documents are, from the point of view of the present application, substantially of the same kind.  I will limit, therefore, my principal reasoning to the first document (SQC.100.900000104).  This is an agreement dated 1 November 2002 between a manufacturing firm, Singapore and a freight-forwarder.

4. Mr Brenton Wu, an officer of Singapore, gave evidence that the general terms of this agreement and its specific provisions regarding blocked space allocation and rates were confidential and commercially sensitive.  Mr Wu accepted that the document was not current, but suggested that it was an uncommon agreement and that its terms were unique to Singapore and ‘relevant to any tripartite agreement that [Singapore] would enter into today’.

5. The information in this agreement is over ten years old.  In my opinion, it has no continuing commercial use.  I do not apprehend any plausible difficulty if it were produced in open court.

6. To head off that conclusion, Mr Free stressed the tangential nature of the material in question to the issues in the trial and the small role to be played by them.  This was a factor, so he submitted, which weighed in the balance in assessing the necessity for the orders.

7. The High Court has been clear in Hogan that there is no balancing exercise involved under former s 50: 664 [31]-[32]. Mr Free submitted, in effect, that in determining what was ‘necessary’, a balancing exercise was nevertheless still called for. In other cases, I have wondered the same thing. Standing back from the problem, it is difficult to see how a determination that something was necessary to prevent prejudice to the administration of justice would not, as a matter of practicality, require a consideration of the various competing interests involved, an assaying of their comparative strengths and weaknesses and a synthesis – dare one say instinctive – of whether necessity has been established.

8. Despite the attractiveness of observations of that kind, it seems to me, however, that I am bound by Hogan not to engage in a balancing exercise.I am not to balance competing interests but I am instead to consult directly, and only, the Sibyl of the prejudice to the administration of justice.

9. In the case of Mr Free’s first category of contractual documents, I do not accept that the interests of justice require their suppression.  The financial data in the first document is over a decade old.  I do not see anything in its terms which requires the exceptional step of requiring part of this case to be conducted in camera.  The same reasoning applies in the case of the other documents in Category One.

10. Turning then to Category Two; these consisted of documents said to contain Singapore’s ‘internal business secrets’.  As finally pressed, this category consisted only of the operating permits issued to Singapore by the Hong Kong Civil Aviation Department (‘HKCAD’) between October 2001 and March 2006.  To give an example, SQC.100.900000056 is an operating permit dated 25 September 2003 issued by the HKCAD to Singapore.  It authorises Singapore to carry cargo on the Singapore to Hong Kong route.  It imposes a weight limit on how much cargo may be carried per week and also on the number of flights which may be conducted.  It places some regulation on the prices which may be charged.

11. I certainly accept that the kind of information revealed in the operating permits would be, if current, highly sensitive information which would be very useful for competitors to know.  If what was in issue were the 2012 or 2013 operating permits, I would be disposed to suppress the figures in them.  But the youngest of these permits was issued in March 2006 and expired in March 2007.  I do not accept this information has the sensitivity which is submitted on its behalf.

12. Mr Free also submitted that the operating permits, if viewed collectively, from 2003 to 2007 would reveal a trend in the capacity constraints imposed by the HKCAD.

13. I do not accept, however, that this establishes the requisite necessity.  Assuming in Singapore’s favour that the capacity constraint trend is truly confidential (and not, for example, equally revealed in Singapore’s competitors’ operating permits), it is, at best, a trend which stops at the start of 2007.  I do not think that knowing there was a trend from 2003-2007 tells one anything useful about 2013.

14. Category Three was said to consist of documents whose release would reveal Singapore’s current business practices and concerns.  The first group of these were marketing reports prepared for Singapore’s various stations.  These were dated between 2004 and 2005.  I will take as an example the report for Hong Kong for September 2005 (SQC.100.900000235).  This shows, for the month of September 2005, Singapore’s performance in the Hong Kong cargo market for shipments to each of the six major zones in the world market (i.e. Europe, USA and so on).  Then set out are the respective revenues for September, the change on the previous year, the total weight of cargo carried (and change on previous year) and the yield.  The same document reveals the targets set, how successfully those targets were achieved, the mix between passenger and freighter flights, and the space utilisation.  There is also included a detailed report for each of the six zones and the major freight-forwarders, as well as an assessment of the current state of the market and the short-term outlook.

15. There is no doubt – leaving to one side its currency – that the information in this document is commercially very sensitive and that, in its day, it would have caused market disruption and unfairness for it to have become known to Singapore’s competitors.

16. Mr Wu gave evidence that these materials were commercially sensitive despite their age:  ‘While the information contained in these reports is dated, the documents provide insight into [Singapore’s] confidential commercial strategies and perceived strategic options for enhancing revenue and obtaining business, which continue to be commercially relevant to [Singapore]’.  I do not agree.  The strategy revealed by these documents is that Singapore wished to make more money by carrying more cargo.  There is nothing commercially sensitive about that information.  Mr Wu also contended in his evidence that the reports were confidential ‘because they reveal in detail the nature of the communications that occurred’.  That nature, however, is merely that local stations reported what was happening in their market.

17. Despite Mr Wu’s evidence, the age of this material means that I simply cannot accept that there would be prejudice to the administration of justice if such material were to be placed in public view. 

18. In this third category, Singapore also sought the suppression of an internal Singapore email dated 4 October 2001 (SQC.134.500000136).  Mr Wu sought to explain the commercial sensitivity of this eleven-year-old email on the basis that it revealed the extent of security and insurance costs in 2001 and that ‘the original amount of the security and insurance surcharge continues to be applied in certain locations’.   I do not accept that this is a valid concern.  Nor do I accept that the fact that email reveals a certain bureaucratic internal process (of a wholly predictable kind) provides any basis for the claim. 

19. The final aspect of the third category pursued by Singapore concerned certain documents relating to an alliance of cargo airlines.  These documents appear to relate to the period 2003-2004 (though some of the documents are not dated in any way).  I was informed from the Bar table that the alliance in question no longer existed.  The point, as Mr Wu sought to explain it, was that the documents might reveal the concerns of Singapore in its membership of the alliance and this might have some impact on future negotiations relating to an alliance.  I do not regard anything useful, let alone significant, as being revealed by these documents.

20. In those circumstances, I reject all of Singapore’s claims for confidentiality.

21. I turn then to the claims made by Qantas.  By the time of the hearing, Qantas confined its claims to just two documents.  These were an agreement between Qantas and an integrator dated 1 May 2006 (ACCC.001.512.0001) and a memorandum of understanding between Qantas and a particular shipper dated around September 2002 (ACCC.001.513.0077).

22. In respect of the first document, Qantas sought to protect only the rates mentioned in the agreement and the totals calculated using those rates.  Qantas submitted that the rates in the agreement were still essentially in use, i.e. that the figures were current.  It was then said that, because the rates were current, their release would permit other airlines to compete for the customer involved.  I accept this.  Although the document is old, the rates are current.  It would disturb the market in an unfair and arbitrary fashion for this information to be released.

23. I also accept that Qantas should have similar orders for the second document.  This contained an incentive arrangement not commonly offered by Qantas.  I accept that the release of the details of this agreement would disrupt the orderly processes of commerce.

24. I will therefore dismiss Singapore’s application but make the orders sought by Qantas. To preserve Singapore’s rights of appeal, I am prepared to make an order under the former s 50 up to and including the day upon which a leave application is heard, provided the leave application is filed before Tuesday 5 February 2013. If it is not, the order will expire the next day. Because the evidence has not yet been tendered, the order should be expressed contingently on its tender. I should indicate that if I were asked to grant leave to appeal, my present inclination would be to refuse the application. Given the time of year, the absence of urgency and the fact that Singapore is the only party affected, I will enlarge the time within which any leave application is to be brought to the close of the Registry on Tuesday 5 February 2013.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       18 December 2012