Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery)
[2015] VSC 352
•22 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 00928
| BORAL RESOURCES (VIC) PTY LTD AND OTHERS | Plaintiffs |
| v | |
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION | Defendant |
| and | |
| AUSTRALIAN COMPETITION AND CONSUMER COMMISSION | Intervener |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2015 |
DATE OF JUDGMENT: | 22 July 2015 |
CASE MAY BE CITED AS: | Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 352 |
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DISCOVERY – documents possessed by party subject to implied undertaking of use only for purposes of proceeding in another court – whether court in separate proceeding can and should order disclosure for purposes thereof - Civil Procedure Act 2010 (Vic) ss 7-9, 55, Competition and Consumer Act 2010 (Cth) s 155.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Scerri QC with Mr E Gisonda | Herbert Smith Freehills |
| For the Defendant | Mr J Gurr with Ms P Knowles | Slater and Gordon |
| For the Intervener | Dr S Donoghue QC with Mr P Melican | DLA Piper |
HIS HONOUR:
The plaintiff subsidiaries of Boral Ltd obtained judgment in default of defence against the defendant union in a proceeding for damages for the tort of intimidation. As now relevant, the allegations in the statement of claim are that the union caused loss and damage to the business of the Boral companies by imposing industrial bans on concrete and other building products supplied by the companies to Victorian building and construction projects. The trial for the assessment of damages is fixed for commencement on 24 August 2015.
By an amended summons dated 14 July 2015, Boral has sought an order that the union make discovery of documents in three categories, described as follows:
(a)all documents (or parts thereof) recording or disclosing the content of oral examinations and interviews (and all documents referred to in any of the examinations or interviews) that were conducted by the Australian Competition and Consumer Commission (ACCC), including under section 155 of the Competition and Consumer Act 2010 (Cth):
(i) of the following persons:
A. Michael Newitt;
B. Brett Young;
C. Craig Boam;
D. Damian Kelly;
E. Jaromir Misztak;
F. Darren Dudley;
G. Fabrizio Ubaldi;
H. Mark Milano;
I. Damian Milano;
J. Linus Humphrey;
K. Sean McEvoy;
L. Ryan Cowled; and
Many other person that the CFMEU intends to call as a witness in these proceedings
(the Proposed Witnesses);
(ii)of any person other than one of the Proposed Witnesses in relation to the delivery or potential delivery of concrete to the following project sites:
A. 450 Smith Street, Collingwood;
B. 511-521 Church Street, Richmond;
C. Craigieburn Shopping Centre, Craigieburn;
D. Derrimut Data Centre, Derrimut;
E. 587 Elizabeth Street, Melbourne;
F. Footscray Plaza, Footscray;
G. Frankston Aquatic Centre, Frankston;
H. 312 LaTrobe Street, Melbourne;
I. Melbourne University, Parkville;
J. Olympic Park, Melbourne;
K. Swinburne University, Hawthorn;
L. Tarneit Shopping Centre, Tarneit;
M. Werribee Plaza, Werribee;
N. Ballarat Aquatic Centre, Ballarat; and
O.Williams Landing Shopping Centre, Williams Landing; and
(iii)of any person other than one of the Proposed Witnesses in relation to the communication of the ‘black ban’ against Boral, and any actions taken in response to the communication.
that the ACCC has provided to the defendant in relation to Federal Court proceeding VID 698/2014.
I will describe the discovery sought as discovery of certain transcripts of examinations conducted by the Australian Competition and Consumer Commission under s 155 of the Competition and Consumer Act 2010 (Cth) in relation to the specified proceeding in the Federal Court of Australia.
The proceeding in the Federal Court is one in which the Commission alleges (among other things) that the union engaged in or attempted to engage in secondary boycott activity against Boral Ltd and its subsidiaries, including the plaintiffs, contrary to ss 45D and 45E of the Competition and Consumer Act. In relation to the factual substratum, there is substantial overlap or commonality between the proceeding in this court and the proceeding in the Federal Court, although the issues in the latter are likely to be broader because liability is a live issue.
Without objection from the Commission, Middleton J ordered in the proceeding in the Federal Court that the Commission provide copies of transcripts of examinations conducted by it under s 155 of the Competition and Consumer Act. That this order for production was made, and was made without objection by the Commission, reflects the fact that the subject matter of the examinations is relevant to the issues in the proceeding and that the transcripts might be relied upon by the Commission therein.
In pursuance of these orders, the Commission has provided copies of the transcripts to the union. Various confidentiality orders have been made and revised in relation thereto. In that regard, the final position is that redacted transcripts have been provided by the Commission to which the union and its legal representatives have had full access. It is to (most of) these transcripts that Boral seeks discovery in the proceeding in this court.
As can be seen from the amended summons, the transcripts sought by Boral relate to specified people (category (i)), specified projects (category (ii)) and the specified black-ban (category (iii))). Because the transcripts falling within these three categories relate closely to the industrial bans that gave rise to the proceeding in this court, I think it highly likely that the transcripts will be relevant in this proceeding. In so concluding, I have taken into account that the interviews probably relate to facts and circumstances going to both liability and loss and damage. While the proceeding in this court now concerns the assessment of damages only, in a proceeding like the present there is such an overlap between liability and loss and damage that the transcripts are nonetheless highly likely to be relevant to the latter. The submissions of the union and the Commission to the contrary are rejected.
The union has possession of the transcripts and is therefore amenable to an order for discovery only because it has obtained them in the proceeding in the Federal Court. Because it so obtained the transcripts, it is bound by an implied undertaking to that court not to use them for any collateral purpose. In these circumstances, the union contends that this court cannot (as a matter of power) and should not (as a matter of discretion) make an order for discovery in respect of the transcripts. The Commission contends that the court should not (as a matter of discretion) make such an order. After considering the submissions of the parties, I have concluded that the court has discretionary power to order discovery in respect of the transcripts and that an order for discovery should be made.
It is not in dispute that the union has possession of the transcripts subject to an implied undertaking owed to the Federal Court not to use them for any purpose other than the purpose of the proceeding in that court. As was explained by Hayne, Heydon and Crennan JJ in Hearne v Street,[1] such an undertaking arises by operation of law. In the present case, it arises from the fact that the union obtained documents through the curial processes of the Federal Court that would otherwise have been private to the individuals concerned. Without the leave of the Federal Court, it would be a breach of the undertaking and an actionable contempt of court[2] for the union to use the transcripts for any other purpose, including the purpose of the proceeding in this court. However, a qualification upon the operation of the implied undertaking is pertinent in the present case. In the words of Mason CJ in Esso Australia Resources Ltd v Plowman:[3]
[n]o doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial processes in other litigation, eg discovery and inspection …
[1](2008) 235 CLR 125, 158-60 [107] (‘Hearne’).
[2]Ibid 158 [106] following Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908, 915 [16] (Laddie J).
[3](1995) 183 CLR 10, 33 cited with approval in Hearne (2008) 235 CLR 125, 161 [110] (Hayne, Heydon and Crennan JJ).
The application by Boral in the present proceeding for an order for discovery against the union in respect of the transcripts relies upon the curial processes of this court in relation to discovery (and, it may be assumed, inspection). These curial processes are to be found in O 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) which contain rules in relation to discovery and inspection and in s 55(1) of the Civil Procedure Act 2010 (Vic) which contain provisions in relation to discovery. As the provisions of the Civil Procedure Act are paramount in this proceeding and the parties addressed their submissions to those provisions, it is not necessary to consider the provisions of the Rules in detail (although I will make some mention of them).
Section 55(1) of the Civil Procedure Act provides that the ‘court may make any order or give any directions in relation to discovery that it considers necessary or appropriate’. Section 55(2) specifies the kinds of orders that the court might so make without limiting the generality of its powers in this regard. By s 55(2)(a)(i), the court may make an order requiring a party to make discovery in relation to specific classes of documents, as has been sought by Boral in the present case. Section 56 empowers the court to impose orders and directions by way of sanction for non-compliance with obligations and orders in relation to discovery.
By ss 8 and 9 of the Civil Procedure Act, the court is required to exercise its powers in s 55(1) and (2) so as to give effect to the overarching purpose of that Act. Section 7(1) specifies that overarching purpose to be the facilitation of ‘the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
Section 9(1) of the Civil Procedure Act provides that, in making an order or giving any direction in a civil proceeding, the court must further the overarching purpose by having regard to a number of specified objects. Those objects are:
(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
Section 9(1) applies according to its general terms to the making of an order and the giving of a direction in relation to discovery under s 55(1) (as it does to the making of orders and the giving of directions under O 29 of the Rules).
As was held by J Forrest J in Liesfield v SPI Electricity Pty Ltd (Ruling No 1),[4] the discovery powers of the court under s 55(1) of the Civil Procedure Act (and O 29 of the Rules) are broad. Consistently with the overarching purpose of the Civil Procedure Act, these powers must be exercised in a manner that is ‘directed to finding the most efficient, effective and economical management of the discovery exercised, bearing in mind the nature and complexity of the trial’.[5]
[4][2013] VSC 634 (27 November 2013) [25].
[5]Ibid; see also Matthews v SPI Electricity Pty Ltd [2011] VSC 401 (30 August 2011) [28] (Zammit AsJ); Suh v Cho [2013] VSC 491 (13 September 2013) [64] (Derham AsJ).
It was submitted on behalf of the union that this court could not exercise the powers in the Civil Procedure Act (and the Rules) so as to order the discovery sought by Boral in the present proceeding without the Federal Court first releasing the union from the implied undertaking in the proceeding in that court. Just who would make an application for such release and how such an application would be made was not addressed by the union in detail. It is not necessary to go into these practical difficulties because I think it is clear from both authority and principle that the implied undertaking yields to the curial processes of courts other than the court to whom the undertaking is owed and that it is not necessary for the court directing discovery to first release the party from its undertaking before another court can exercise its curial powers to order discovery in respect of the relevant documents in a separate proceeding.
I will begin with Patrick v Capital Finance Pty Ltd (No 4).[6] Here Tamberlin J held that it was not necessary for the County Court of Victoria to release a party from the implied undertaking before the Federal Court could order discovery of the relevant documents.[7] Contrary to the submissions of the union, I think his Honour’s analysis has not been undermined by the subsequent decision of the High Court in Hearne.
[6][2003] FCA 434 (16 May 2003) (‘Patrick’).
[7]Ibid [20]-[21]. His Honour did not order release of the documents because it was not relevant to the issues in the proceeding: [35].
Patrick was cited with approval in Schweppes Pty Ltd v Amcor Ltd.[8] In that case, Gordon J held that an implied undertaking of a party in a proceeding in the Federal Court was no answer to compliance by that party with its discovery obligations in another proceeding in that court.[9] Following the judgment of Mason CJ in Plowman, her Honour held that
the resolution of any tension between what would otherwise be competing and inconsistent obligations, is readily apparent; resolution lies in properly identifying the contents of the implied undertaking. In particular, it is necessary to recognise that the undertaking impliedly given in one proceeding not to use documents compulsorily produced in that proceeding except for the purposes of that proceeding is necessarily subject to other requirements of the law. So to take what may be a clearer example of the limits of the undertaking, the implied undertaking given in one proceeding would provide no answer to a subpoena for production of these documents in another proceeding. When a party is subpoenaed to produce documents obtained in another proceeding, it is no answer to say that ‘I am subject to an undertaking about how I may use these documents’. The party’s undertaking in the first proceeding restricts the uses to which that party may choose to put the documents. But the undertaking is no answer to otherwise valid compulsive processes of law …[10]
Again, I see nothing in Hearne that is inconsistent with this reasoning.
[8](2008) 8 ATPR 42-224 (‘Cadbury Schweppes’) [13].
[9]Ibid.
[10]Ibid. Her Honour held that if the question was to be framed as whether the parties should be released from the implied undertaking, then it should be: [14]. On appeal, Mansfield, Kenny and Middleton JJ noted that this conclusion was not challenged: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547, 558 [47].
Cadbury Schweppes was followed in Huntsman Corporation Australia Pty Ltd v Brookfield Rail Pty Ltd.[11] In releasing a party to a proceeding in the Supreme Court of Western Australia from the implied undertaking so that relevant documents could be the subject of discovery sought against the party in another proceeding in that court, Allanson J took into account that the undertaking did not stand in the way of such an order.[12] The decision came after Hearne and, in my view, is not inconsistent with it.
[11][2012] WASC 70 (1 March 2012) [20].
[12]Ibid [21].
Cadbury Schweppes was also followed in Alcoa of Australia Ltd v Apache Energy Ltd [No 6].[13] The documents in question were provided to the defendant companies by the prosecutor in a proceeding in the Magistrates’ Court of Western Australia and were sought by way of discovery by the plaintiff from the defendant companies in a proceeding in the Supreme Court of that State. After noting the principles enunciated by Hayne, Heydon and Crennan JJ in Hearne and the limitation on the principles identified by Mason CJ in Plowman, Le Miere J held:
Notwithstanding the implied obligation, the rules of this court apply to a party who has a document in that party’s possession by reason of a process in another court and that party is obliged to comply with the processes in this court and make discovery of the document.[14]
After carefully assessing the competing discretionary considerations, his Honour ordered discovery against the defendant companies in respect of the documents.[15] After the same assessment, I will do to the same in this proceeding.
[13][2014] WASC 287 (13 August 2014) [12].
[14]Ibid [14].
[15]Ibid [26].
These principles were discussed by Pagone J in this court in Griffiths and Beerens Pty Ltd v Duggan (No 2).[16] Here the relevant document was an affidavit received by the plaintiffs in a proceeding in this court. When releasing the plaintiffs from the implied undertaking so that they could use the document as a separate proceeding also in this court, his Honour held that the ‘implied undertaking cannot restrict or fetter, and was not stated as a restriction or fetter, on a court’s power in relation to its own processes in proceedings properly instituted before it’.[17] This case was decided just before Hearne but the relevant aspects of the reasoning of Pagone J were based on the passage in the judgment of Mason CJ in Plowman that was approved by the plurality in Hearne.
[16][2008] VSC 230 (26 June 2008) (‘Griffiths and Beerens Pty Ltd’).
[17]Ibid [5], cited with approval in Clifford v Vegas Enterprises Pty Ltd [2009] FCA 1204 (26 October 2009) [31] (Barker J).
In submitting that this court could not order discovery with respect to the transcripts without the Federal Court first releasing the union from its undertaking, the union particularly relied upon this passage from the judgment of the plurality in Hearne:
Before turning to the appellants' submissions in relation to the extent and enforceability of the ‘implied undertaking’, it is desirable to set out some background legal principles which were not in controversy.
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise,[18] to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery,[19] answers to interrogatories,[20] documents produced on subpoena,[21] documents produced for the purposes of taxation of costs,[22] documents produced pursuant to a direction from an arbitrator,[23] documents seized pursuant to an Anton Piller order,[24] witness statements served pursuant to a judicial direction[25] and affidavits.[26] [27]
However, this passage is a general statement about the content of the obligation arising under the implied undertaking in a proceeding. It does not deal with the issue of discovery that might be ordered pursuant to curial processes in a separate proceeding. That issue was dealt with by Mason CJ in Plowman in the passage cited above.
[18]Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908, 916 [19]; affd [1999] 3 All ER 154, 169-170.
[19]Riddick v Thames Board Mills Ltd [1977] QB 881; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 32-3.
[20]Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, 510-511; Ainsworth v Hanrahan (1991) 25 NSWLR 155.
[21]Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322.
[22]Bourns Inc v Raychem Corporation [1999] 1 All ER 154, 169-170.
[23] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 33, 39, 46-7 , 48.
[24]Cobra Golf Inc v Rata [1996] FSR 819.
[25]Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 223; State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224, 229.
[26]Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261; Re Addstone Pty Ltd (In Liq); Ex parte Macks (1998) 30 ACSR 156.
[27](2008) 235 CLR 125, 154-55 [95]-[96] (Hayne, Heydon and Crennan JJ).
It is established that the implied undertaking to the court ordering discovery or other compulsory disclosure binds both the party receiving the documents and any other person to whom they are given.[28] I reject the union’s submission that, if this court were to order discovery in respect of the transcripts, Boral would be bound by the undertaking that the union owes to the Federal Court. Rather, Boral would be bound by an undertaking to this court to use the transcripts only for the purpose of the proceeding in this court.
[28]Hearne (2009) 235 CLR 125, 160 [109]-[111] (Hayne, Heydon and Crennan JJ).
In my view, in a proceeding this court has power under s 55(1) of the Civil Procedure Act (and O 29 of the Rules) to make orders with respect to the discovery (and also with respect to the inspection) of documents that fall within the scope of an implied undertaking owed to a different court in another proceeding. In particular, the court in the present proceeding has power under that provision (and order) to make an order for discovery against the union in respect of the transcripts without the Federal Court first releasing the union from its undertaking in respect of the documents in the proceeding in that court.
The next issue to determine is whether the court should, in the exercise of its discretion, make an order for discovery against the union with respect to the transcripts under s 55(1) of the Civil Procedure Act. In my view, making the order sought would give effect to the overarching purpose of that Act as specified in s 7(1) and further the objects as specified in s 9(1). It is highly likely that the transcripts contain statements that are directly relevant to identifying whether Boral suffered loss and damage by reason of the union’s industrial bans and the extent of such loss and damage. The categories of documents have been described by reference to relevant discrimen with appropriate specificity. The nature and degree of the discovery sought is proportionate to the complexity and importance of the issues and amount in dispute. I do not accept that Boral has been guilty of inordinate delay in bringing the application and compliance with the order sought would not impose unreasonable burdens upon the union. In reaching this conclusion, I have taken into account all of the elements of the overarching purpose but particularly the purpose of facilitating the ‘just … resolution of the real issues in dispute’. The contents of the statements are likely to be so highly probative to the issue of Boral’s loss and damage that it would be unjust to deprive it of the targeted order of discovery that has been sought.
Both the union and the Commission submitted that, when determining whether to order discovery, the court should have regard to the principles governing the release of a party from the implied undertaking that is owed to a court that initially directed discovery. It was common ground that these principles were identified in Liberty Funding Pty Ltd v Phoenix Capital Ltd.[29] In that case, Branson, Sundberg and Allsop JJ referred to the judgment of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[30] and summarised the relevant considerations (depending upon the circumstances) as follows:
[29](2005) 218 ALR 283 (‘Liberty Funding’).
[30](1992) 38 FCR 217 (see esp at 225).
• the nature of the document;
• the circumstances under which the document came into existence;
•the attitude of the author of the document and any prejudice the author may sustain;
•whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
•the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
•the circumstances in which the document came in to the hands of the applicant; and
•most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.[31]
[31]Liberty Funding (2005) 218 ALR 283, 289-90 [31].
The submissions of the parties in relation to the relevance of these principles rather put this court in the position of the Federal Court as the court to whom the undertaking was owed. The relevant question was framed as if this court, standing in the shoes of the Federal Court and by reference to those principles, would release the union from its undertaking.
I do not accept that this consideration should be so approached. Whether the union should be released from its undertaking is a matter entirely for the Federal Court. This court is not hearing and determining an application for such release and is in no position to be doing so. However, when independently determining whether to order discovery, the court can take into account as a pertinent discretionary consideration that the relevant documents are the subject of an implied undertaking owed by the party in possession to another court and give this consideration the weight that is due in the circumstances, for the court would not lightly order discovery of such documents. In that respect, by parity of reasoning the case comes within the general category identified in Johns v Australian Securities Commission[32] by Brennan J:
The exercise of a statutory power or authority may annihilate or modify an antecedent right or duty,[33] but that is not to say that the antecedent right or duty is irrelevant to the manner in which the statutory power or authority is to be exercised. The antecedent right or duty is a relevant factor affecting the discretionary exercise of the statutory power or authority. It will not ordinarily be a determinative factor, because statute will usually confer the power or authority for some public purpose embracing factors beyond the rights of, or duties owed to, an individual.[34]
[32](1993) 178 CLR 408 (‘Johns’).
[33]Smorgon v Australia & New Zealand Banking Group Ltd (1976) 135 CLR 475, 486-488 (Stephen J).
[34]Johns (1993) 178 CLR 408, 430.
In assessing the weight of this consideration, the court can note, as I do here, the principles upon which the court initially directing discovery (or other compulsive disclosure) and to whom the undertaking is owed might release the party from the undertaking. It can especially take into account the likely contribution of the document to achieving justice in the proceeding in this court (which the court in Liberty Funding stated was the most important of all), for this court is in the best position to determine the significance of that consideration.
The most important considerations counting against the making of an order for discovery under s 55(1) of the Civil Procedure Act were advanced by the Commission to whom I granted leave to intervene on this subject. On its behalf, it was submitted that the court should not exercise its discretion to make such an order for reasons which were summarised as follows:
3.1There is a public interest in preserving the basis upon which information is compulsorily obtained, and it requires a very strong case to justify the use of information that has been compelled to be provided for one purpose to advance some different purpose.
3.2The purpose of compelling persons to give evidence under s 155 of the Competition and Consumer Act 2010 (Cth) (CCA) is to aid the Commission in the discharge of its functions under the CCA, including the investigation of alleged breaches, and the obtaining of evidence for submission to the court in proceedings in respect of contraventions of the CCA. The legislative framework supports the conclusion that information obtained by compulsion should be used only for the purposes for which it is obtained and for any other purposes prescribed under the legislation (for example, s 155AAA).
3.3Examinees gave evidence to the Commission in this instance in private examinations, under pain of criminal sanction if they refused to answer, in furtherance of that legislative purpose.
3.4It is unjust to the examinees to permit the information that they provided under compulsion for one purpose to be used for a different purpose, being to advance the plaintiffs’ private claims against the defendant (Boral proceeding).
3.5The provision of s 155 transcripts to Boral carries with it the real risk of impairing the Commission’s capacity to discharge its functions in the public interest, including as a result of the risk that the examinees’ cooperation with the Commission will diminish in the context of the Commission’s present Federal Court proceeding against the defendant, and more generally.
3.6Boral’s submissions do not demonstrate that the interest in disclosure is sufficient to outweigh the above considerations.
In support of these submissions, the submission relied upon the affidavit of Marcus Francis Bezzi, the Executive General Manager of the Commission, sworn 8 July 2015. That affidavit supplied a factual foundation in support of the propositions advanced in the Commission’s submissions.
I would generally accept two propositions advanced or underpinning the submissions of the Commission. These propositions are that transcripts of examinations conducted under s 155(1) of the Competition and Consumer Act are private to the individuals concerned and that the effective operation of the processes established by that provision, and the achievement of the purposes of the Commission which the provision was enacted to support, might be inhibited by court-ordered release of transcripts in collateral private proceedings such as the present.
The great importance of the private nature of examinations conducted under s 155(1) is not to be doubted. As submitted by the Commission, the powers conferred by that provision are strongly coercive, and necessarily so. Consequently, it has long be established that such examinations are private.[35] Moreover, s 155AAA contains provisions that are designed to protect the confidentiality of information obtained by officials of the Commission in the performance of their duties and functions under the Competition and Consumer Act, including in relation to examinations conducted under s 155(1) (see also s 157). More generally and as explained by Brennan J in Johns,[36] information obtained through legally compulsory processes must ordinarily be used only for the purposes of those processes. Ordering discovery of the transcripts in the present proceeding would detract to some extent from both the privacy of the transcripts and the statutory purposes for which they were coercively obtained.
[35]Constantine v Trade Practices Commission (1984) 48 FCR 141, 146 (Jenkinson J).
[36](1993) 178 CLR 408, 423-4, approved Katsuno v The Queen (1999) 199 CLR 40, 57 (Gaurdron, Gummow and Callinan JJ).
Likewise, the great importance of protecting the integrity of the processes for coercive examination established by s 155(1) must be accepted. Mr Bezzi’s affidavit explains the general significance of the private nature of examinations in some detail. He refers especially to the role of confidentiality directions and confidentiality statements in the conduct of examinations, including the examinations in question. In his view, ordering discovery of the transcripts would undermine the general reputation of the Commission for conducting confidential examinations (which would have a ‘chilling effect’ on the free flow of information to the Commission under s 155(1)) and the specific ability of the Commission effectively to prosecute its case against the union in the proceeding in the Federal Court. He expands upon this opinion in his affidavit by reference to examples. He emphasises, as did counsel for the Commission, the public interest in the free flow of information to regulatory agencies and the effective conduct of enforcement and contravention proceedings.
In another case considerations such as these might count in a determinative way against the making of an order for discovery. In this case, however, I consider that the interests of justice demand that an order be made.
At issue in this case is not the general release of the transcripts concerned. Discovery would be for the purposes of the present proceeding and Boral would owe an implied undertaking to this court to that effect. Examinations under s 155(1) necessarily involve the potential for some disclosure because contravention proceedings in the Federal Court are always a possibility. If such proceedings are commenced, the interviewees will usually be compellable witnesses and the transcripts may be disclosed to respondents because of the likely reliance placed upon them by the Commission, as occurred in the present case. Disclosure in separate civil proceedings, as in the present case, would amount to wider disclosure again, but not to general disclosure. The transcripts would still enjoy a significant measure of confidentiality.
I accept that ordering discovery of the transcripts might not be helpful to the Commission in relation to the conduct of examinations under s 155(1) generally (because it might create discomfort on the part of interviewees about the actual confidentiality of the process) and the conduct of the proceeding in the Federal Court (because it might create some witness management issues). Because of these and other considerations going to the importance of maintaining the integrity of s 155(1) examinations, this court would not lightly make discovery and like orders in relation to documents covered by an implied undertaking in a contravention proceeding in the Federal Court.
However, the process of examination under s 155(1) is coercive and participation is compulsory. As I have stated, interviewees will usually be compellable witnesses in a contravention proceeding in the Federal Court. Having regard to the coercive nature of the s 155(1) process and the powers of the Federal Court to compel interviewees to attend and give evidence as witnesses, I do not consider that the making of an order for discovery in the present proceeding would significantly inhibit the Commission in the performance of its duties and functions generally or in the proceeding in the Federal Court specifically. In particular, I do not accept that there is a ‘real risk’[37] that important public interests, such as ensuring the free flow of information to regulatory agencies and the effective conduct of contravention proceedings, would be compromised by ordering discovery of the transcripts in the proceeding in this court. I reach that conclusion after taking into account that voluntary and co-operative participation in s 155(1) examinations and contravention proceedings is obviously to be preferred and, to the greatest extent possible, encouraged.
[37]See The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83, 93 [46] (Steytler P, McLure JA and Newnes AJA) (a public interest immunity case).
In my view, the fundamental considerations supporting the making of an order for discovery in respect of the transcripts are the overarching purpose in s 7(1) of the Civil Procedure Act of facilitating the ‘just … resolution of the real issues in dispute’ and the object in s 9(1)(a) of the ‘just determination of the civil proceeding’. There is such commonality between the factual substratum of the contravention proceeding in the Federal Court and the civil proceeding in this court that the contents of the transcripts are highly likely to be strongly probative in relation to the loss and damage allegedly suffered by Boral by reason of the bans in question. In the circumstances, it would be unjust to deprive Boral of the order for discovery that it seeks.
Having regard to the revised confidentiality regime in the Federal Court and the redaction of the transcripts (see above), it appears that they contain limited if any personal information in relation to individuals. But they may contain some. The transcripts probably contain at least some commercially sensitive information. That the transcripts may contain some personal information in relation to individuals and probably contain commercially sensitive information are not reasons against the making of an order for discovery, and subsequently for inspection, in the proceeding in this court. These considerations can be addressed through the comprehensive confidentiality regime that is here in place.
Accordingly there will be an order for the discovery sought.
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