Bougainville Copper Limited v RTG Mining Inc and anor (Transcript Ruling) - [2018] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2018 00309

BOUGAINVILLE COPPER LIMITED	Applicant
v
RTG MINING INC and CENTRAL EXPLORATION PTY LTD	Respondents

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 21 May 2018 (written submissions 26 June 2018)
DATE OF RULING:	3 September 2018
CASE MAY BE CITED AS:	Bougainville Copper Limited v RTG Mining Inc and anor (Transcript Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VSC 499

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PRACTICE AND PROCEDURE ― Non party’s request to obtain transcript ― Hearing in interlocutory hearing ― Evidence by affidavit ― Transcript of argument only ― Matters to be considered

PRACTICE AND PROCEDURE ― Orders for confidentiality of filed documents ― Court’s inherent jurisdiction ― Application for pre-action discovery of documents ― Respondents’ apprehension that grounds of application insinuate scandalous or seriously improper conduct ― Whether confidentiality order over all Court documents ought be made ― No application for confidentiality throughout hearing ― Application after judgment reserved ― Application refused ― Supreme Court (General Civil Procedure Rules) 2015, r 28.05.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	On written submissions
For the Defendant

HIS HONOUR:

The Court has heard, and has reserved, its decision on an intensively fought application for pre‑action discovery of documents under rule 32.05 of this Court’s general civil procedure rules. That is an application brought against an identified prospective defendant against whom an applicant has reasonable cause to believe that it has, or may have, the right to obtain relief but it needs additional information by way of discovery of documents from that prospective defendant to assist in making a decision whether or not to sue.

The underlying commercial context of the application is the pursuit as between the applicant (‘BCL’) and the second respondent (‘Central Exploration’) in venturing to gain commercial interests to explore and develop the former Panguna mine in the Autonomous Region of Bougainville in Papua New Guinea. The first respondent is a minority shareholder in Central Exploration with two common directors, and for ease of narration I shall refer to them here as the respondents.

An unexpected and distracting controversy that is unconcerned with the merits of the application has since been agitated by the respondents. It calls for a ruling. It started with the authorised transcript provider notifying my Chambers on 21 May 2018 that a Mr Nik Zuks had enquired about obtaining the transcript of the hearing. He is not a party. He is not a deponent. But he is no stranger to Bougainville and the underlying commercial interests in this application. Mr Zuks is one of four defendants named in a proceeding commenced in the Supreme Court of Western Australia (‘the WA proceeding’) on 13 November 2017 in which the respondents in this application are two of three plaintiffs in that proceeding. BCL is not a party to that proceeding. The writ and amended statement of claim in that proceeding were referred to and tendered in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 499
Decision Date: 3 September 2018

CaseChat Overview and Summary

The Supreme Court of Victoria was asked to consider the release of a transcript of a pre-action discovery application, and the issue of whether any documents filed in the proceeding should be treated as confidential. The underlying dispute involved the exploration and development of the Panguna mine in Bougainville, Papua New Guinea. The applicant, Bougainville Copper Limited, sought an order for discovery of documents from the respondents, RTG Mining Inc and Central Exploration, based on a suspicion of wrongdoing in relation to the acquisition of mining rights. The respondents opposed the release of the transcript of the proceedings to a non-party, Mr Nik Zuks, and also sought a blanket confidentiality order in relation to all documents filed in the proceeding. The court considered the issue of whether the transcript could be released to a non-party, and found that there was no basis in the rules or case law for preventing the release of the transcript, which was a transcript of argument rather than evidence. The court also rejected the application for a confidentiality order, finding that the respondents had not demonstrated a sufficient risk of prejudice to warrant such an order. The court concluded that the open justice principle should be given effect, and that the respondents had not demonstrated a real risk of prejudice that could not be mitigated by other means. The court also found that Mr Zuks had a sufficient interest in the proceeding to warrant allowing him access to the transcript.

Orders