BHP Billiton Iron Ore Pty Ltd v National Competition Council & Anor

[2008] HCATrans 253

Replacement Transcript

[2008] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M17 of 2008

B e t w e e n -

BHP BILLITON IRON ORE PTY LTD

Appellant

and

THE NATIONAL COMPETITION COUNCIL

First Respondent

FORTESCUE METALS GROUP LIMITED

Second Respondent

Office of the Registry
  Perth  No P6 of 2008

B e t w e e n -

BHP BILLITON IRON ORE PTY LTD

First Appellant

BHP BILLITON MINERALS PTY LTD

Second Appellant

and

THE NATIONAL COMPETITION COUNCIL

First Respondent

FORTESCUE METALS GROUP LIMITED

Second Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2008, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR A.J. MYERS, QC:   May it please, your Honour, I appear with MR P.D. CRUTCHFIELD for the BHP companies in each of these two matters.  (instructed by Blake Dawson)

MR I.B. STEWART:   May it please, your Honour, I appear for the first respondent, the National Competition Council in both of these matters.  (instructed by Clayton Utz)

MR M. I. BORSKY:   May it please, your Honour, I appear in each matter for the second respondent, Fortescue Metals Group Limited.  (instructed by DLA Phillips Fox)

HIS HONOUR:   They are your applications, are they not, Mr Myers?

MR MYERS:   Thank you, your Honour.

HIS HONOUR:   Summonses of 13 June.  You read the affidavits of Mr Preston of that date, do you?

MR MYERS:   Yes, I do, your Honour.

HIS HONOUR:   Is there any objection of my receiving either affidavit?

MR BORSKY:   No, your Honour.

MR STEWART:   No, your Honour.

HIS HONOUR:   Yes.  Mr Myers, just before you begin, can I just understand from the respondents what the position is.  Mr Stewart, what is your attitude to the application?

MR STEWART:   The National Competition Council consents to the application, your Honour.

HIS HONOUR:   Yes.  Mr Borsky.

MR BORSKY:   Your Honour, I do not have instructions to consent, but the application is not opposed by Fortescue.

HIS HONOUR:   Yes, thank you.  Yes, Mr Myers.

MR MYERS:   May I pass forward to your Honour a form of order.  I do not presume to do that for any purpose other than to draw your attention to the schedule of the confidential material that is referred to in each of the draft orders.  They are each the same.  That schedule is different from the summons, your Honour.  There have been some alterations and if we use the annexure A to the order, we will get it right, what documents we are referring to.

HIS HONOUR:   Are the alterations by way of addition and subtraction?

MR MYERS:   By way of subtraction, your Honour, in every case and it is a result of discussions between the parties and now the portions that have been treated as confidential have been identified with the precision of a brain surgeon, your Honour.  We are going from comma to colon and that sort of thing.  Your Honour, all this material was before the Federal Court and by agreement it was all confidential at that point.  There was a broader class of material that was treated as confidential by consent before the Federal Court but this is within that material.  Your Honour will see, if your Honour looks at this annexure A, that a good deal of what confidentiality is claimed for is in fact not reproduced in the High Court appeal book.

HIS HONOUR:   But because the Federal Court appeal book is filed here and available for search, we have to deal with it. 

MR MYERS:   It is in the Registry.

HIS HONOUR:   Yes, I understand that.

MR MYERS:   Exactly.  Does your Honour have a copy of the Federal Court appeal book?

HIS HONOUR:   Yes, and forgive me if I confess I have not read it.

MR MYERS:   I, of course, have read the whole of it, having appeared below.

HIS HONOUR:   Yes.

MR MYERS:   Could I take your Honour first of all to tab 1 and this is an affidavit of Phillip Anthony Price made 5 July 2005 and the two paragraphs for which confidentiality is claimed are paragraphs 12 and 31.  Paragraph 12 begins “After completing the original feasibility study” and it goes over the page.  Your Honour can read it more quickly than I can.  Paragraph 31 is the last paragraph.  It deals with some aspect of a study.  The affidavit of Terrence John Howard is at tab C2 and it is just one paragraph, paragraph 133.  It is right at the end of the affidavit on page 31, your Honour.

HIS HONOUR:   Yes, I have that.

MR MYERS:   It sets out something about shipping grades of ore that my clients ship.  Then the next affidavit is of James Stewart Hart made 21 July 2005 and it is tab C7.  There are a few more paragraphs there, your Honour, and they are all rather alike.  Paragraphs 17 to 20 set out some terms of a joint venture agreement that my client is a party to.  Then there is 25 to 27, the same in relation to another joint venture agreement, then 37 to 39, yet a further agreement.

HIS HONOUR:   Now, with material of this kind, what I have to act on is the unchallenged evidence of Mr Preston ‑ ‑ ‑

MR MYERS:   That is so, your Honour.

HIS HONOUR:   - - - to the effect that these are ‑ ‑ ‑

MR MYERS:   Commercially sensitive and if it is known in the market, it may prejudice my client.

HIS HONOUR:   Is all of the material of generally similar kind to those items or examples that you have so far taken me to?

MR MYERS:   No, your Honour.  Some of the other material is very detailed, very detailed material about grades and so on.

HIS HONOUR:   Could you take me to either the best or a good example of such of them?

MR MYERS:   One of those.  I just do this at random.  Tab D6 is a report of Richard Schroeder.  It is March 2006.

HIS HONOUR:   D6 is the affidavit?

MR MYERS:   D6.3 I think it might actually be, your Honour.  It is the report.

HIS HONOUR:   Yes, I have that.

MR MYERS:   If your Honour glances at it, it is really not necessary to read all of it, but Dr Schroeder made a very detailed report analysing the qualities of various ore that was extracted in the course of its processing and that was another aspect of the evidence in the Federal Court and it is not really of the same kind as the earlier material.  So it breaks down into those two instances, your Honour.

HIS HONOUR:   The D6.3 report is not reproduced.

MR MYERS:   It is not reproduced, and the supplementary report, which deals with the same subject, is not reproduced, for example.  But I literally just took that at random, your Honour.  One can look at some of these other reports and they are of the same kind.

HIS HONOUR:   The only thing that struck me about the form of order proposed in the summons, and I see from the draft you have handed up, is that it is not expressed to be, is it, until further order?

MR MYERS:   No, it is not expressed.

HIS HONOUR:   Should it not be?

MR MYERS:   I cannot have any objection to that, your Honour.

HIS HONOUR:   I rather suspect it should be until further order simply to guard against the possibility of changed circumstances.

MR MYERS:   We would accept that, your Honour.

HIS HONOUR:   If I make an order in those terms, I do not today propose to get into the consequences that that will then have for the way in which appeal books are put together.  All of that can be sorted out at a later stage.  All I would say to the parties’ solicitors is be conscious of the need to solve the practical problem of a Judge in Court needing to use the appeal book, needing to know what is confidential and what is not, and being able still to use the document as a practical working document.  All of those problems are readily solved and no doubt they will be.

MR MYERS:   I have no doubt they will be, your Honour.

HIS HONOUR:   I need say no more on them.

MR MYERS:   The solicitors for the parties are in Court, your Honour, and I am sure they will heed what they have heard.  They are the orders that we seek, your Honour, and we accept that each of them should be “until further order”, so that we would express the Court orders that until further, et cetera.  Would that be an acceptable way of doing it, your Honour?

HIS HONOUR:   Yes.  Do I need to spell out until further order of the Court or a Justice?  Probably not, I would have thought.

MR MYERS:   I should have thought not.  “The Court or a Justice”, we will add that for the sake of – each of the orders that are sent for saying in that case we will have that alteration, your Honour.  I should also mention that while I was waiting for your Honour to come onto the Bench a further little blemish in annexure A was noted and I altered, your Honour, in hand - if your Honour looks at annexure A, the report of Patrick Georges Phillippe Rey ‑ ‑ ‑

HIS HONOUR:   Of 9 March?

MR MYERS:   Yes, it was 2 and I changed it by hand to 9 on your Honour’s copy.

HIS HONOUR:   Yes, thank you.  Does any other party wish to be heard against my making orders amended in the form indicated?

MR STEWART:   No, your Honour.

HIS HONOUR:   Thank you, Mr Stewart.

MR MYERS:   Your Honour, I respectfully suggest that your Honour simply orders that the costs be reserved.

HIS HONOUR:   Why not costs in the appeal?

MR MYERS:   Costs in the appeal, if your Honour pleases.

HIS HONOUR:   The costs of the application should be costs in the appeal.

MR MYERS:   Thank you, your Honour.

MR BORSKY:   Your Honour, may I clarify the intent of that order and whether it be necessary in light of rule 51.02.2 which provide that:

Where an application in a matter is unopposed, the costs of both parties shall be part of their costs of the cause unless the Court or a Justice otherwise orders.

I presume that your Honour is not intending to otherwise order and therefore may I respectfully submit that an order for costs is not necessary?

HIS HONOUR:   An order in the terms proposed, namely, that the costs of the application be costs in the appeal is, I think, to precisely the same effect as the rule would otherwise require, but it is making may, I do not say will, avoid future difficulty.

MR BORSKY:   If your Honour pleases.

HIS HONOUR:   You would be astonished at what seems capable of producing future difficulties.

MR BORSKY:   I had anticipated that a different kind of future difficulty may arise, but given what your Honour has said on the transcript, I need not press the matter.

HIS HONOUR:   In other words, I have just been verballed is what you are telling me.  If I make orders in those terms, what I have done is amend the drafts submitted by you, Mr Myers, and initialled those and those initialled drafts may remain on the file.

MR MYERS:   Thank you, your Honour.

HIS HONOUR:   Yes, adjourn the Court.

AT 9.43 AM THE MATTER WAS CONCLUDED