Campbells Cash and Carry Pty Ltd v Woolworths Ltd

[1992] FCA 475

43s 192.

JUDGMENT No. ....... ,,,, ,,

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WILI;ES DISTRICT REGISTRY)	No NG 204 of 1992
GENERAL DIVISION	1

BETWEEN CAMPBELTS CASH & CARRY

PTY LIMITED

Applicant

AND WOOLWORTHS LIMITED

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Respondent

EINFELD J SYDNEY 4 JUNE 1992

This notice of motion by the respondent comes before the Court at short notice. It seeks orders that all previous confidentiality orders in this matter be set aside and in

lieu :

That a l l documents produced or t o be produced i n

these proceed ings by a n y person under a c l a i m f o r

c o n f i d e n t i a l i t y be k e p t c o n f i d e n t i a l and a c c e s s be

l i m i t e d u n t i l f u r t h e r o r d e r t o Messrs Sweeney QC,

Darke, McClel lan QC and C a t t e r n s , and members or

employees o f Messrs	Allen A l l e n & Hemsley and
c o n f i d e n t i a l i t y .

C lay ton U t z , S o l i c i t o r s .

It further seeks an order that:

... w i t h i n 24 hours M i - W i l l i a m Beerworth r e t u r n t o

Messrs A l l e n A l l e n & Hemsley a l l documents i n c l u d i n g

c o p i e s s u p p l i e d t o him by a n y person which were

produced i n these proceed ings

The case was first called at 9.30 this morning at the request

of the respondent and, after an explanation by the

respondent's counsel as to what the matter was about, was then

adjourned to 2.15 this afternoon at the request of the

applicant, to afford an opportunity for the applicant to meet

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the case presented by the respondent. When the matter resumed at 2.15, it turned out that the delay had been completely unnecessary because when the motion was launched this afternoon, the respondent was represented by a different counsel and the particular paragraph of the affidavit which the applicant had wished, and had prepared an affidavit, to answer was not pressed.

After an hour and a half of argument this afternoon, the respondent now concedes that its motion is premature, at least to the extent that the affidavit evidence produced in support of the motion does not support or justify the orders sought. Despite the fact that counsel for the respondent has come into the matter extremely late, and notwithstanding the problems

with some courage and skill in the circumstances.	for his client's motion, he has put the arguments strongly and
The position clearly is that the motion cannot be granted on the material presently before the Court, nor has the argument yet emerged which lay behind the launching of the motion in the f irs&! in?tance. When the case itself was last before the

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rtikrt on&6	~ ~ ~ ' i l ,	t became clear that documents produced on
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.'y=ubpbenal -jwlii.ch '(bad an element of confidentiality to the

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respondent, were subject only to limited access. At that time the access agreed upon by the parties was to counsel and instructing solicitors only.

There arose on that occasion some dispute as to whether Mr

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William Beerworth, who is a solicitor and a business consultant but is not a member of the firm of solicitors on the record for the applicant, was entitled to be included in the category of people and entitled to see the documents that came within the confidentiality orders. I said at the time that it was a matter for practising lawyers not the Court as to whether Mr Beerworth was properly described as an "instructing solicitor". As events occurred, he has in fact been shown and has seen and read the documents produced at the time.

Almost at the end of the argument on the motion, there was placed in evidence a letter from the respondent's solicitors to the applicant's solicitors of 16 April 1992, concerning

been subpoenaed for production on that day by the respondent.	documents not produced to the Court on that day but which had
There is no dispute that the letter was sent and received. It enclosed the documents of the respondent which were the subject of that subpoena. In other words, the documents produced in that letter represented the respondent's answer to the subpoena.

It appears that this letter of 16 April, which is exhibit W1 in these proceedings, was not made part of the evidence on the motion by oversight. It was therefore not subjected to any response or reply by the applicant today, either in evidence or even in argument until immediately after it was produced in - Court a few minutes ago. This letter makes clear that the documents in the letter were provided on the condition that they:

... are treated as strictly confidential and their

contents are not divulged to any person other than counsel briefed and solicitors formally on the record in these proceedings.

Unfortunately the letter used the expression that they were provided, "on your undertaking," meaning the undertaking of the applicant's solicitors. I am informed that no such undertaking was ever given but subsequent correspondence in evidence on the motion indicates that following upon that letter, there was a dispute about whether Mr Beerworth should or should not be shown the documents. I was informed by

proceedings that M r Beerworth has in fact had access to those	senior counsel for the applicant during the course of the
documents and, as I understand it, has them in his possession at this very moment.
I have earlier said that the discussion I had with counsel for
the respondent during argument on the motion resulted in a concession that, as is the undoubted fact, the motion is not supported by the evidence and is premature. This applies to

all the orders sought except one. This is an order that the documents supplied by the 16 April letter be returned by M r Beerworth. I did contemplate the possibility of making a very short temporary order of this kind until the motion could be properly constituted. This was because it appeared that - counsel for the respondent was at a significant disadvantage at having been brought into the matter at very short notice. It therefore seemed appropriate that an opportunity should be given to him to get his instructions completely clear, as they were certainly not clear during the course of the hearing, and that as M r Beerworth was not the owner of the documents, they should go back to their original owner for a temporary period.

I also took into account in contemplating such an order that

there appears to have arisen a misunderstanding about the basis upon which the documents were supplied in the 16 April letter. The correspondence in this respect is marginally equivocal. I think a sensible reading of the correspondence would show that the applicant has always made clear its

intention to show all confidential material produced in this	litigation to Mr Beerworth. A technical point was raised that
in one letter, namely, a letter from the applicant's solicitors to the respondent's solicitors of 25 May, all that was being referred to was access to documents on subpoena and the documents in the 16 April letter were strictly not documents on subpoena. However, looking at the documentation as a whole, to describe this as a technical objection is to do a dishonour to the word "technical".
The matter which finally determined me against making the contemplated order was that in the hour and a half of the argument this afternoon, quite contrary to the matter opened this morning by the earlier counsel for the respondent, there was a distinct reluctance to confront what had been explained - to me then as the central issue in this motion. That was the possibility that Mr Beerworth might be involved in a conflict of interest if he were to see the documents. This was said to be because in a capacity other than as instructing counsel for the applicant in these proceedings, namely as a business consultant to some of the respondent's competitors, he may feel compelled to reveal, even incidentally or accidentally, material covered by the confidentiality order.
Despite raising this suggestion this morning, the respondent has been at pains on a number of occasions to give Mr Beerworth a warm, unequivocal and unqualified vote of confidence and trust. In other words, there is raised as a speculative possibility that he might use confidential
material in some unevidenced way completely contrary to the qualities endorsed by those engaging in the speculation.
Furthermore, M r Beerworth has already read the documents. Any order that he return them in those circumstances for a short period would be a mere token gesture not merited by the evidence or by the arguments which have been advanced in support of the motion.

When the respondent is ready to bring a proper case supported by evidence for the exclusion of Mr Beerworth from access to confidential material I will certainly deal with it. However, attempting to skirt around the issue playing with peripheral matters is a complete waste of time and does not warrant a - discretionary order at this time. Further, it is wrong to seek the indulgence of the Court for urgent hearings to deal with matters that are not urgent. It is not urgent to seek the return of documents from a person said to be in breach of a confidentiality order which have been in that person's possession for some considerable period. It is simply too late.

Moreover, I am informed that the real problem in the case does not arise on the subpoenaed documents but will arise when discovery takes place shortly. If it is desired to limit access to the discovered documents in some way, I would have no problem at all in contemplating the respondent qualifying the consent it gave on 16 April in regard to the subpoenaed

consent orders of 16 April only applied to the subpoenaed	documents so as to exclude Mr Beerworth. By their terms the
documents themselves. They would not automatically flow over to the discovered documents. To the extent to which the subpoenaed documents and the discovered documents might coincide, there might be a possible doubt that ought to be cleared up as to whether access should be given to a person who might have a conflict of interest.

I do reiterate, however, as I did in argument today and on 16 April, that who is an instructing solicitor is primarily a professional matter, not for a decision of a Court. It seems an inappropriate expenditure of time and money to constitute a court case about that definition because evidence will be necessary which seems quite irrelevant to this dispute.

As I see it, this motion is not a matter needing to be resolved at all. In any event, none of the necessary material for the argument, and none of the argument itself, has been put before the Court in the course of this motion despite the fact that that was said to be the purpose of the motion itself. In those circumstances no other order can be made other than that the motion be dismissed.

RECORDED NOT TRANSCRIBED

I order that the applicant's costs of the motion be paid by the respondent.

I cc-'l') :h:: :his znd the -(7]

prxcc: -3 p:c:s .?rz a true copy of the

Eecc:-s f ~ r :u.'~msi;t hercln of h ~ s Honour

.J,;:.cc E.nic!d

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