Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17)

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMERCIAL COURT

S ECI 2014 000146

CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff
v
VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS	Defendants
and
CARGILL, INCORPORATED AND OTHERS	Third parties

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23, 24 OCTOBER 2018
FURTHER WRITTEN SUBMISSIONS:	25, 31 OCTOBER 2018
DATE OF RULING:	6 DECEMBER 2018
CASE MAY BE CITED AS:	CARGILL AUSTRALIA LTD v VITERRA MALT PTY LTD (No 17)
MEDIUM NEUTRAL CITATION:	[2018] VSC 750

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PRACTICE AND PROCEDURE – Discovery – Confidential documents – Production – Produced to external legal practitioners and experts subject to confidentiality undertakings – Access sought by in-house counsel upon undertakings being given to the court as to confidentiality and damages – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff and the 1^st and 2^nd third parties	Mr P Anastassiou QC Dr C Button	Gilbert + Tobin
For the defendants	Mr A Myers QC Mr S Senathirajah QC Mr J Carter	King & Wood Mallesons

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Background................................................................................................................................... 3

B.1... The issues in the proceeding............................................................................................. 3
B.2... Evidence led at trial giving rise to further discovery.................................................... 4
B.3... Previous approach to interlocutory applications heard during the trial................... 7

C.. Genesis of this application....................................................................................................... 10

C.1... Ruling No 9........................................................................................................................ 10
C.2... Ruling No 13...................................................................................................................... 15
C.3... Ruling No 16...................................................................................................................... 20
C.4... Appeal Reasons................................................................................................................. 23
C.4.1.. Parties’ submissions on this application........................................................... 23
C.4.2.. Further observations............................................................................................. 28

D.. Evidence and materials relied upon on this application.................................................... 36

D.1... The Viterra Parties’ further evidence............................................................................. 36
D.2... The Cargill Parties’ further evidence.............................................................................. 47
D.3... Earlier evidence relied upon on the rehearing of this application............................ 51

E... Legal Principles.......................................................................................................................... 56

F... Parties’ contentions.................................................................................................................... 66

F.1... The Cargill Parties............................................................................................................. 66
F.2... The Viterra Parties............................................................................................................. 78

G.. Ruling........................................................................................................................................... 84

H.. Conclusion................................................................................................................................. 102

HIS HONOUR:

A. Introduction

On 14 September 2018, I ordered that Matthew Michael Weber (“Weber”), in-house counsel of the fourth defendant, Glencore International AG (“Glencore”), be given access to certain confidential documents (“the Confidential Documents”) discovered by “the Cargill Parties”;[1] being the plaintiff, Cargill Australia Ltd (“Cargill Australia”), the first third party, Cargill, Incorporated (“Cargill, Inc”), and the second third party, Joe White Maltings Pty Ltd (“Joe White”).[2] Those orders (“the Previous Access Orders”),[3] which were made subject to Weber giving an undertaking to the court substantially in the form annexed to these reasons (“Weber’s Undertaking”),[4] permitted Weber to inspect the Confidential Documents and discuss them with any of the external lawyers and independent experts who had already signed confidentiality undertakings with respect to the same documents.[5] The Previous Access Orders also provided for access by Weber by means of a secure data room, subject to further order.[6]
[1]As to a more precise meaning of “Confidential Documents”, see pars 162, 168(1) below.
[2]Now known as Cargill Malt Asia Pacific Pty Ltd.
[3]The Previous Access Orders included:
1.Upon Matthew Michael Weber (“Weber”) giving an undertaking to the court substantially in the form annexed to these orders (“the Undertaking”), Weber shall be permitted to inspect the documents listed in Schedules 1 and 2 of the list of documents dated 22 August 2018 and any further documents discovered or otherwise produced by the Cargill Parties pursuant to the orders made by the Honourable Justice Elliott on 19 July 2018 (“the Confidential Documents”) on the terms set out in paragraphs 2 and 3 below.
2.The Confidential Documents are to be made available to Weber through a data room hosted by Intralinks Inc (“the Data Room”) on the following basis:
(1)The defendants’ solicitors (“King & Wood Mallesons”) are to act as administrators of the Data Room.
(2)Solicitors of King & Wood Mallesons who have signed confidentiality undertakings in the form annexed to the orders made by the Honourable Justice Elliott on 7 August 2018 (“the Orders”) are released from those undertakings to the extent necessary to load the Confidential Documents into the Data Room.
(3)Solicitors of King & Wood Mallesons, external counsel and independent experts who have signed confidentiality undertakings in the form annexed to the Orders are released from those undertakings to the extent necessary to:
(a)Show the Confidential Documents to Weber at the offices of King & Wood Mallesons.
(b)Disclose the contents of the Confidential Documents to Weber in discussions with him.
(c)Upload into the Data Room any communications which contain the Confidential Documents or any part of them.
(4)The settings of the Data Room are to be set so that documents are watermarked “confidential”, cannot be printed, downloaded, emailed or have screenshots taken of them.
(5)The Cargill Parties will not seek access to data concerning Weber’s activity within the Data Room without prior leave of the court.
(6)Intralinks Inc’s charges for hosting the Data Room are to be met by the Cargill Parties in the first instance or, if Intralinks Inc will only issue its invoices to the defendants (or King & Wood Mallesons), then the Cargill Parties will reimburse those costs within 14 days of receipt of a copy of the invoice, with the court reserving whether the costs of the Data Room are recoverable in the proceeding.
3.While Weber is in Australia, he is also able to inspect the Confidential Documents at the offices of King & Wood Mallesons upon the terms set out in the Undertaking.
4.Subject to further order, paragraphs 1, 2 and 3 above are stayed until 4:00 pm on 19 September 2018.
5.Upon Ken Iwata of King & Wood Mallesons’ IT department (“Iwata”) and any other person from King & Wood Mallesons’ IT department assisting him (“the Assistants”) signing a confidentiality undertaking in the form annexed to the Orders, Iwata and any of the Assistants shall be permitted to inspect the Confidential Documents to the extent necessary:
(1)To upload the Confidential Documents to the Data Room.
(2)In the performance of King & Wood Mallesons’ duties as administrator of the Data Room.
[4]Weber’s Undertaking was given, through Glencore’s counsel, on 14 September 2018 and is attached as annexure “A” to these reasons.
[5]The confidentiality undertakings were not given to the court, but to the Cargill Parties.
[6]See fn 3 above, order 2. That secure data room was ordered after further submissions from the parties: see pars 157-158 below.

The Previous Access Orders had been sought by all the defendants (“the Viterra Parties”)[7] and were opposed by the Cargill Parties. Upon the Previous Access Orders being made, and the reasons being published (“Ruling No 16”),[8] the Cargill Parties sought leave to appeal. The Previous Access Orders included a stay,[9] so that the confidentiality with respect to Weber could be preserved until the Court of Appeal became seized of the matter.
[7]In addition to the ultimate parent company, Glencore, the defendants are Viterra Malt Pty Ltd, Viterra Operations Ltd and Viterra Ltd.
[8]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 16) [2018] VSC 529.
[9]See fn 3 above, order 4.

On 12 October 2018, leave to appeal was granted and the appeal was allowed. For the reasons published (“the Appeal Reasons”),[10] the hearing of the application was remitted to me for further hearing and determination.[11]
[10]Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 (Kyrou and McLeish JJA, Whelan JA dissenting).
[11]At [224] (Kyrou and McLeish JJA).

Upon the further hearing of the application, both the Cargill Parties and the Viterra Parties took the opportunity to file further affidavits in support of their respective positions. In addition, contrary to their earlier position, the Viterra Parties offered to give an undertaking as to damages to the court in respect of any breach of Weber’s Undertaking. Also, in contrast to the Cargill Parties’ former position, the Cargill Parties withdrew an open offer for access to be given to another in-house lawyer (of the Viterra Parties, except Glencore).[12]
[12]See Ruling No 16, [19], [28]-[29].

For the reasons that follow, it will be ordered that the Confidential Documents must be made available for inspection by Weber. Such access will be granted upon reaffirmation of Weber’s Undertaking to the court and upon the Viterra Parties jointly and severally giving undertakings as to damages with respect to any possible breach of Weber’s Undertaking in the future.

B. Background

B.1 The issues in the proceeding

By way of broad overview only, the key events in this proceeding may be stated shortly.

On 4 August 2013, Cargill Australia agreed to purchase a business, comprising certain “shares and assets used in connection with” the business of Joe White (“the Joe White Business”) from 1, or, alternatively, all of the Viterra Parties except Glencore, for the sum of $420 million (“the Acquisition Agreement”). The purchase was completed on 31 October 2013 (“the Acquisition”).

The Cargill Parties allege Cargill Australia entered into, and later completed, the Acquisition Agreement in reliance upon certain representations and warranties, which they contend were, compendiously, misleading. The misleading conduct is alleged to have included a failure to disclose that malt was supplied “routinely” to Joe White’s customers that did not comply with contractual requirements and specifications, without the customers’ knowledge. This conduct is alleged to have been accompanied by the supply of certificates of analysis that misstated the results of analytical testing, thereby indicating that the contractual requirements and specifications had been complied with when they had not (“the Viterra Practices”). It is further alleged that the Viterra Practices were recorded and endorsed by certain written policies (“the Viterra Policies”).

The Cargill Parties make claims under the Competition and Consumer Act 2010 (Cth), contractual claims (including breach of warranty) and claims based on breach of duty and deceit. The loss claimed is in the hundreds of millions of dollars.

The Viterra Parties do not admit the allegations concerning the Viterra Practices and the Viterra Policies, or any knowledge of them, and otherwise, broadly speaking, deny the substantive allegations made. Further, reliance is placed upon the due diligence carried out before the Acquisition, and various disclaimers, acknowledgements, releases and limitations of liability. Allegations are also made against the Cargill Parties suggesting a want of care. Furthermore, issues concerning proportionate liability are raised. Amongst other things, it is alleged Cargill, Inc, Joe White and 2 other third parties, who were employed by Joe White at the relevant times,[13] are “concurrent wrongdoers” for the purposes of the Competition and Consumer Act and the Wrongs Act 1958 (Vic).
[13]One of them, Peter Youil, remains an employee of Joe White.

For the purposes of this application, it is unnecessary to refer to the allegations between the Viterra Parties and the other third parties, or to the allegations in the reply and defence to the defence and amended counterclaim. Suffice to say that there are many questions raised, with the list of issues presently identifying 128 distinct matters for determination by the court, many of which contain numerous sub-issues.

B.2 Evidence led at trial giving rise to further discovery

There have been 32 lay witnesses called at the trial. A significant number of them have touched on issues relevant to this application. Before turning to some of this evidence, it is convenient to refer to the evidence that alerted the Viterra Parties to the existence of the Confidential Documents.

Early in the trial, during the course of the cross-examination of Aimee Breszee (“Breszee”),[14] the second witness called by Cargill Australia, evidence was adduced concerning a proposed disposition (“the Proposed Disposition”). Breszee deposed that the Proposed Disposition involved the global malt business operated or ultimately controlled by Cargill, Inc, including the Joe White Business (“Cargill’s Malt Business”), was to be by way of sale or joint venture, and was the subject of related documentation. As part of that evidence, the court was informed that valuations had been prepared of Cargill’s Malt Business.
[14]Breszee is, and at all material times was, technical accounting director within the centre of expertise of Cargill, Inc.

In response to a call for the valuations, the Cargill Parties produced 2 documents (“the Initial Confidential Documents”), but in a redacted form. Upon the giving of confidentiality undertakings, redacted versions of the Initial Confidential Documents were made available to the opposing parties’ external solicitors and counsel.[15]
[15]For a more detailed account of these circumstances, see Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [2], [21]-[25].

As to other evidence led at trial by Cargill Australia concerning issues related to this application, there has been evidence regarding the Cargill Parties’ involvement in the grain industry (including barley) and the business of selling malt.[16] Further, the Cargill Parties have led evidence, without any claim for confidentiality, concerning Cargill, Inc’s decision-making processes with respect to the acquisition of businesses and business activities more generally.
[16]At the start of the trial, the Cargill Parties sought to lead evidence in a manner that protected the alleged confidentiality about certain aspects of Cargill Australia’s malting business. The Cargill Parties were directed to make an application under the Open Courts Act 2013 (Vic) by a specified time, otherwise the court would not allow evidence to be led other than openly. No application was made and the court was informed that the Cargill Parties did not seek to maintain their position with respect to the aspects of Cargill Australia’s business previously the subject of a confidentiality claim.

Although much of this evidence touches upon events from 2012 to 2014, there has been no evidence to suggest the underlying approach and principles applied have changed. On the contrary, the evidence from a number of the Cargill Parties’ witnesses has been that the ways in which Cargill, Inc and its subsidiaries conduct business are very definite, well-established and, within the organisation, transparent. These established approaches, according to evidence led by the Cargill Parties, are well-adhered to.

Such evidence led by the Cargill Parties includes:

(1)The role and function of Cargill, Inc’s board, including the board’s usual procedures regarding meetings and preparation.
(2)The role and function of the various corporate leadership teams, including with respect to proposals for acquisitions and which acquisitions require the leadership teams to seek board approval.
(3)The role and function of business unit platforms, including their decision-making processes and their authority with respect to acquisitions (or not proceeding with acquisitions).
(4)Cargill, Inc’s approaches to strategic decision-making, including the operations underlying them such as a project “tag” and workstream leads.
(5)Key documents and templates used by Cargill, Inc in preparation for an acquisition.
(6)Cargill, Inc’s regional activity in the barley market in 2012, and its strategic priorities and margins.
(7)Cargill, Inc’s regional activity in the malting market in 2012, and its strategic priorities and margins.
(8)The key employees of Cargill, Inc for the acquisition of Joe White, and the roles each of them was required to carry out.
(9)Cargill, Inc’s approach to valuing businesses or companies the subject of a proposed acquisition, including the extent to which external advisers would ordinarily be retained for “medium size” transactions.
(10)The significance of synergies to Cargill, Inc’s approach to a possible acquisition and to valuing a target business or company, including with respect to purchasing a malt business and its potential synergies with Cargill, Inc’s other malt businesses and its grain trading. In this regard, evidence was led of Cargill, Inc giving “quite a lot of attention to [the capacity to engage in grain procurement] in the due diligence [of Joe White]” through Cargill, Inc’s existing grain and oilseeds supply chain business, which was anticipated to be 1 of Cargill, Inc’s largest possible synergies.

This evidence was largely relied upon by the Viterra Parties to establish that some matters of sensitivity in the Confidential Documents concerning Cargill, Inc’s decision-making processes have already been the subject of evidence at trial.[17]
[17]Senior counsel for the Cargill Parties stated that the Cargill Parties did not rely upon any evidence at trial and were content for the court to confine itself to the evidence put forward specifically for the purposes of this application.

B.3 Previous approach to interlocutory applications heard during the trial

Since the trial started on 18 June 2018, there have been frequent and continuing interlocutory disputes. During the course of the trial, with respect to issues relating to discovery and inspection alone, up to the time of this rehearing, there have been 34 orders made.[18] Some orders have been either by consent or with minimal opposition, but many have been the subject of contested hearings.
[18]Orders have been made on 19, 21, 26 and 27 June 2018, 2, 4, 10, 18, 19, 26 and 31 July 2018, 2, 6, 7 (x2), 15, 17, 21, 28, 29 and 30 August 2018 (x2), 5, 10, 12, 14, 19 and 21 September 2018, 1, 8, 10, 15, 16 and 24 October 2018.

With respect to all contested interlocutory hearings, the procedure adopted up until 11 September 2018 was as follows:

(1)The parties filed and served any materials upon which they intended to rely before the hearing.
(2)The parties filed and exchanged written submissions.
(3)The evidence and the written submissions were read by me before the application was heard.
(4)Oral submissions were made (usually outside court hours so as to not interrupt the trial), largely to supplement the written submissions already provided.
(5)The court gave a ruling on the interlocutory application either the same day as the hearing, or the next day.
(6)On occasion, after an oral ruling was given, a party requested revised written reasons.
(7)When requested, written reasons were provided, without interrupting the progress of the trial.

This approach had been embraced by the parties, with the Cargill Parties and the Viterra Parties often briefing separate counsel to appear after hours on the interlocutory applications. Such an approach allowed the trial to continue with as little disruption as possible, in an attempt to deal with the real issues in dispute in a timely and efficient manner.[19]

[19]See Civil Procedure Act 2010 (Vic), s 7.

Consistently with this approach, the hearing of the application on 11 September 2018 was held (at 2.00 pm, as the next witness was not available until the following day) after the parties had provided a list of the affidavits upon which they intended to rely, together with substantive written submissions.[20] Also consistent with the previous approach, after leaving the bench for approximately 10 minutes, and after hearing some further brief submissions concerning the form of any confidentiality undertaking, I gave an oral ruling in respect of the application.
[20]The defendants filed submissions on 30 August 2018 (which adopted and relied upon some earlier submissions made on 21 August 2018) and 11 September 2018, the latter provided by email at 10.11 am, for the 2.00 pm hearing. The Cargill Parties filed submissions on 4 September 2018. At the hearing on 11 September 2018, the parties were informed that the court had read each of the parties’ submissions.

As at 11 September 2018, all the evidence of all the lay witnesses had been led.[21] Given the relevance of the Confidential Documents to the expert evidence regarding loss or damage, it was critical that the ruling be given promptly so as to not cause significant delay to the conduct of the trial.[22] Ruling No 16 expressly referred to the fact that it was being provided as a matter of urgency.[23]
[21]At the time of the rehearing, there was 1 further witness who was described as an expert, but gave his evidence, on 21 November 2018, other than pursuant to the expert code of conduct.
[22]There is yet another interlocutory application which cannot be heard and determined until the outcome of this application is known: see fn 30 below.
[23]Ruling No 16, fn 4.

The need to revisit the issue of whether or not Weber should be given access had already caused significant delay to a trial that was scheduled to be completed at the end of November 2018.[24] There is now no prospect of the trial being completed in a time proximate to that schedule.[25]
[24]This was the revised date. Initially, the trial was scheduled to commence in early May 2018 and finish in early August 2018.
[25]Regrettably, the delivery of this ruling has also been delayed by reason that I was required to hear another trial fixed for hearing in the week commencing 29 October 2018.

In addition to the general urgency of Ruling No 16, upon the oral ruling being given it was foreshadowed by the Cargill Parties that leave to appeal would be sought. Revised reasons were prepared, which were published at 6.32 pm on Friday, 14 September 2018, in order to give the parties time to consider those reasons over the weekend for the purposes of any application for leave to appeal and the impending stay application in the Court of Appeal.[26]
[26]The order for the stay to lapse on 19 September 2018 was made pursuant to an agreement between the parties: see fn 3 above.

In light of the Cargill Parties’ submission that I overlooked relevant matters in Ruling No 16, which was upheld by the majority of the Court of Appeal, I have not adopted my previous approach to interlocutory hearings with respect to this ruling.

C. Genesis of this application

C.1 Ruling No 9[27]

[27]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433.

In the fourth week of trial, after Breszee had completed her evidence,[28] the Cargill Parties filed a summons seeking orders preventing any further disclosure and distribution of the Initial Confidential Documents.[29]
[28]See par 13 above.
[29]See par 14 above.

The following day, the Viterra Parties filed a summons seeking unredacted copies of the Initial Confidential Documents. The Viterra Parties’ summons also sought orders for particular discovery of other documents dealing with substantially the same subject matter as the Initial Confidential Documents. The 2 applications were heard together on 18 July 2018.

A ruling was given the following day. The court ordered the Cargill Parties to discover further documents, which now comprise the Confidential Documents.[30] The orders of the court[31] (“the 19 July Orders”) included:
[30]This is with respect to the discovery to date. There are ongoing discovery obligations and the Cargill Parties acknowledge further documents must be discovered, but the precise ambit of the further discovery required is the subject of another interlocutory application which is awaiting the final determination of this application: see pars 54-56, 99, 144, 204(17), 220(29) below.
[31]The orders as originally made were subsequently varied at the request of Cargill Australia, and without opposition from the Viterra Parties. The orders as set out above are the orders made as varied.

By 4:00 pm on 27 July 2018, the Cargill Parties make discovery of:
(1)Any documents recording, forming part of or referring to any valuation prepared since 1 October 2017 in respect of:
(a)the business operated by Cargill Malt Asia Pacific Pty Ltd (formerly Joe White Maltings Pty Ltd) (“the Australian Business”);
(b)[Cargill’s Malt Business],

including any documents recording the inputs, instructions or assumptions prepared or provided for the purpose of such valuations.
(2)In relation to any proposed disposition of Cargill’s Malt Business or part of it since 1 October 2017:
(a) Any information memoranda or any similar documents.
(b)Any offers or proposals, whether formal or informal, made to or from any prospective party.
(c)Presentations to, and minutes of, any meetings of the Food Ingredients & BioIndustrial Platform and the Board of Directors of Cargill, Inc.

In providing the reasons as to why the 19 July Orders were made, I found that the Confidential Documents were relevant to Cargill Australia’s claim for loss, both on the “left in hands” approach and the Potts v Miller[32] approach.[33] However, these findings of relevance were not exhaustive. The Viterra Parties contended that the Confidential Documents were relevant to whether the addition of Joe White to Cargill’s Malt Business was valuable in itself because of the synergies created. Further, the Viterra Parties contended the Confidential Documents were relevant to whether Cargill Australia would have purchased Joe White regardless of any alleged lack of knowledge of the Viterra Practices and the Viterra Policies.[34] I expressly refrained from ruling on whether or not the Confidential Documents were also relevant to these issues.[35]
[32](1940) 64 CLR 282, 299.6 (Dixon J).
[33]For an explanation of these different approaches, see Ruling No 9, [43]-[47], [50]-[52].
[34]Ruling No 9, [28(1) and (2)].
[35]Ruling No 9, fn 34.

At the time of the hearing on 18 July 2018, the Cargill Parties had filed: a notarised statement of Eric De Munter (“De Munter”), the vice president of Cargill, Inc’s corporate strategy and development group; an affidavit of Douglas Ujdur (“Ujdur”), a senior lawyer of the mergers and acquisitions global practice group lead in the Minneapolis offices of Cargill, Inc; an affidavit of a senior lawyer at Cargill, Inc, Brooke Tassoni (“Tassoni”); and an affidavit of Janet Whiting (“Whiting”), the solicitor in charge of the conduct of the Cargill Parties’ case in this proceeding.

With respect to the evidence then before the court, the statement and each affidavit relied upon by the Cargill Parties were referred to in Ruling No 9. The following was stated:[36]
[36]Ruling No 9, [32]-[37].

De Munter‘s statement was directed towards the [Initial] Confidential Documents, and said those documents contained “only preliminary estimates which are based upon incomplete assumptions and partially-accurate inputs”. He contended, therefore, that they were not reliable indicators of the value of Cargill’s Malt Business. Further, he attested that release of documents containing Cargill, Inc’s preliminary valuation work would significantly impair and prejudice Cargill, Inc’s ability to “fairly compete”,[37] and would “materially undermine [its] negotiation position with potential counterparties” in any “strategic process”. Significantly, however, after seeking to downplay the reliability of the [Initial] Confidential Documents, De Munter stated the information was commercially sensitive because it included margins, historical volumes, detailed input costs and details of strategic projects.
[37]The Cargill Parties’ counsel described this as “perhaps an odd choice of words”, and submitted they were intended to refer to being able to “compete in a sale process”.
Tassoni’s affidavit identified the [Initial] Confidential Documents as the documents referred to by Breszee during her evidence, and referred in particular to the contents of Confidential Document A as “highly confidential and commercially sensitive”.
Ujdur’s evidence was similarly directed towards the [Initial] Confidential Documents. He stated that the exercise of preparing the [Initial] Confidential Documents had been “preliminary in nature and rested on non-specific cost allocations, limited forecasted numbers and other general, unvalidated assumptions”. Ujdur described the Confidential Documents as “high level pulse checks intended only for internal consumption”.
Ujdur further stated that the [Initial] Confidential Documents were considered by Cargill, Inc to be highly confidential and highly proprietary. Disclosure of the [Initial] Confidential Documents, especially to Cargill, Inc’s competitors, was said to be likely to lead to adverse implications, including by way of third parties being discouraged from transacting with Cargill, Inc in particular ways, or at all. It was further said:
Those companies who are in the same industry may be particularly well-placed to use the information for their own purposes and contrary to the interests of Cargill’s [M]alt [B]usiness. I cannot say how they would use the information, but it is almost like a mosaic. Every little piece of information may assist in painting a fuller picture. Moreover, the puzzle pieces of any valuation exercise, even if preliminary, contain commercially-sensitive inputs such as margins, historical volumes and costs, which, if disclosed, could significantly impair and prejudice [Cargill, Inc]’s ability to compete even outside of the malt business.

Shortly before the Discovery Application[38] and the Confidentiality Application[39] came on for hearing, the Viterra Parties filed a short affidavit sworn by [Weber]. In his affidavit, Weber swore that none of the Viterra Parties, including the ultimate parent company Glencore, “own or have any interest in any company that engages in the malting of barley since the sale of Joe White”, and that they “possess no plan or present intention to invest in or acquire a malting business”.
A short affidavit [of Whiting] filed in response by the Cargill Parties exhibited a number of screenshots of Glencore’s website which included information about Glencore’s agricultural business and where it operates. Those screenshots demonstrate that Glencore’s agricultural business has facilities throughout North and South America, Europe and the east coast of Australia, with offices in those regions and others, including Africa, China, India, Japan, Vietnam, Singapore and South Korea. They also show that Glencore presents itself as a “market leader in originating, handling, processing and marketing agricultural commodities”, including barley. However, there was nothing in this evidence that suggested Glencore had any present involvement in malting.
(Original emphasis and footnotes, except for footnotes 38 and 39.)

[38]The Discovery Application is a reference to the application detailed in par 27 above.

[39]The Confidentiality Application is a reference to the application detailed in par 26 above.

As may be seen from the passage set out above, it was uncontroversial that Glencore had a substantial presence in the processing and marketing of agricultural commodities, including barley, and that the Cargill Parties were concerned about Cargill, Inc’s ability to compete both within and outside the malt business should access be granted as sought. This has been common ground throughout the applications concerning the discovery and disclosure of the Confidential Documents.

Also in Ruling No 9, it was stated:[40]

Also with respect to the issue of confidentiality, Cargill, Inc and Glencore are not strictly trade rivals. Although they were rivals in the malt business in the past, albeit to a limited extent, and there is a possibility that they will compete in the future with respect to malt, presently Glencore is not in the malt producing industry.
(Emphasis added.)

[40]At [54].

There was no submission by the Cargill Parties on 11 September 2018 that anything contained in that paragraph was incorrect. It reflected the Cargill Parties’ focus at the time, which was that a critical factor with respect to access was the extent to which the Cargill Parties and Glencore were both engaged in the malt business, in the context where they were also competitors in the processing and marketing of agricultural commodities, including barley.

During the current hearing, the court invited the Cargill Parties to make any submission as to the inaccuracy of any finding in Ruling No 9. No such submission was made during the hearing. However, a note was forwarded after the hearing which raised a number of matters:

(1)In regard to the finding that there was nothing in the evidence to suggest that Glencore had any present involvement in malting,[41] it was stated that the finding was correct, but that extracts from Glencore’s website indicated “a present involvement in the malting industry”. The relevant extracts stated that Glencore participated “in both malting barley and feed barley” and was a major supplier to “the malting and brewing market in China and across Asia”.
(2)It was suggested that the Viterra Parties have formally elected to adopt a particular approach with respect to the assessment of damages by virtue of their instructions to their expert.[42]
(3)The Cargill Parties contended they would be materially prejudiced if the alternative, “left in hands”, approach were to be adopted by the Viterra Parties as the appropriate means of assessing any loss of Cargill Australia.[43]
(4)As to the finding that Cargill, Inc and Glencore were not strictly trade rivals,[44] the following was stated:
Since Ruling No 9 was prepared, further evidence has been adduced to the effect that Cargill, Inc and Glencore are trade rivals.
(Original emphasis.)

[41]Ruling No 9, [37].

[42]Cf Ruling No 9, [48].

[43]Cf Ruling No 9, [51].

[44]Ruling No 9, [54].

I make the following observations in relation to the points made above:

(1)This observation is trite. The evidence at trial is to the effect that, ordinarily, a major source of business for a barley trader is to sell barley of malt-grade quality (or otherwise) to maltsters.

(2) & (3) These are matters for closing submissions.
(4)Whilst it is correct that further evidence was subsequently adduced, this response does not portray the entire picture. As may be seen from the passage set out above,[45] before Ruling No 9 was delivered there was already evidence before the court as to Glencore’s (and Cargill, Inc’s) involvement in the barley market. Not only was there evidence to this effect on the application, there had already been evidence at the trial as to aspects of their respective participation in the grain market, including barley.

C.2 Ruling No 13[46]

[45]See par 31 above.

[46]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478.

Pursuant to the 19 July Orders, the Cargill Parties provided a list of documents on 27 July 2018. An updated list was provided on 5 August 2018 (“the List of Documents”).

On 7 August 2018, the court made further orders, as follows (“the 7 August Orders”):

The plaintiff produce for inspection the documents on the [List of Documents], and any other documents discovered pursuant to the [19 July Orders], to:
(1)the external legal representatives (solicitors and counsel) of each of the parties; and
(2)Meredith, Klein and Potter (and those assisting those persons in respect of their expert reports),[47]

upon those persons giving undertakings in the form annexed to these orders, from 7:00 pm on 7 August 2018.

[47]“Meredith, Klein and Potter” is a reference to the loss or damage experts retained in the case.

The 7 August Orders were made to facilitate access by external legal representatives and the independent experts, on the express basis that the Viterra Parties intended to revisit the issue of access by Glencore’s in-house counsel, Weber. That application was duly made on 21 August 2018.

In dismissing that application, a number of observations were made in Ruling No 13 that were subsequently referred to by the majority in the Court of Appeal.[48] In particular, in Ruling No 13 it was observed that the Viterra Parties had cross-examined witnesses called on behalf of Cargill Australia with respect to the Confidential Documents without any apparent difficulty.[49] Necessarily, that observation was confined to the cross-examination that had occurred up to that time, coupled with the fact that no relevant evidence as to Weber’s role was then before the court. This was made clear in Ruling No 16.[50]
[48]Appeal Reasons, [70]-[76].
[49]Ruling No 13, [7].
[50]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 16) [2018] VSC 529, [11]-[12].

Further, reference was made in Ruling No 13 to the extent to which the Cargill Parties and the Viterra Parties already compete in the barley trade and the malt business.[51] As this was expressly referred to in Ruling No 16,[52] and in its entirety by the Court of Appeal,[53] it is reproduced in full:

Although the defendants are not presently in the malting business, they have substantial interests in the grain business in many parts of the world; a business in which the Cargill Parties are also extensively engaged. Further, despite there being no present intention of the defendants to participate in the malting business, there is no guarantee that they will not do so in the future, or that Weber will not participate as in‑house counsel in any such activities. Furthermore, the evidence before the court shows that, not only are Glencore and the Cargill Parties competitors in the barley trade, but that Glencore has been actively involved in the last year in selling malt‑grade barley to the Cargill Parties. Moreover, an affidavit sworn by Tina Savona on 21 August 2018 on behalf of the Cargill Parties contended that confidential information regarding the cost of barley purchased by them could be used by Glencore in “an anti-competitive manner” to further its business interests in the barley trade.

(Emphasis added.)

The reference to the affidavit sworn on 21 August 2018 by Tina Savona (“Savona”) was a reference to an affidavit filed on the date that application was heard, which initially was provided to the court on a confidential basis.[54] That affidavit stated that the possible sale of Cargill’s Malt Business was ongoing and made reference to the Confidential Documents containing information that was confidential either to Cargill, Inc itself or to Cargill, Inc together with third parties.[55] It was stated that the Confidential Documents included information that would not usually be available to potential buyers and “would undermine Cargill’s bargaining position” in respect of the Proposed Disposition.

[51]Ruling No 13, [10].

[52]Ruling No 16, fn 31.

[53]Appeal Reasons, [71], [141] (Kyrou and McLeish JJA).

[54]During the course of the hearing on 21 August 2018, the Cargill Parties stated that they did not maintain their claim for confidentiality with respect to Savona’s affidavit.

[55]Ruling No 13, [13]. See also Ruling No 16, [21].

Further, in paragraphs 19 to 22 of the affidavit, Savona gave evidence about both Glencore and Cargill, Inc being competitors as barley traders.[56] That affidavit stated that the Confidential Documents included information regarding the cost of barley.
[56]See Appeal Reasons, [69] (Kyrou and McLeish JJA).

In addition, Savona made reference to purchases made by Cargill’s Malt Business from Glencore in the previous year. Savona expressed the belief that “[t]o the extent that Cargill purchases barley from Glencore in the future”, awareness of information concerning barley costs would put Glencore at an unfair advantage in relation to such transactions.[57]
[57]At the time the affidavit was sworn, Cargill’s Malt Business had no open contracts for the purchase of barley from Glencore. No evidence has been subsequently led to suggest this position has changed.

Finally, Savona deposed that she was informed by De Munter that Glencore was likely to have merger or acquisition targets in common with Cargill, Inc which were active in sectors in which both Glencore and Cargill, Inc operate, including in agricultural commodities. It was suggested that disclosure of this information would adversely affect Cargill, Inc’s strategic position.

Returning to Ruling No 13, observations were made about the sensitivity of the Confidential Documents. In that context, it was stated that they were “highly confidential”. Further, reference was made to the interests of third parties.[58] Those observations were referring to evidence of Savona to the effect that some of the information contained in the Confidential Documents was the subject of non-disclosure agreements. Savona also gave hearsay evidence that disclosure would “jeopardise Cargill’s relationship with those [third] parties and would have the effect of making those parties disinclined to continue to participate in the sale process”.
[58]Ruling No 13, [13].

Next, Ruling No 13 referred to the criticality of the Viterra Parties choosing not to file any substantive evidence in support of the application.[59] Notwithstanding previous invitations by the Cargill Parties for the Viterra Parties to put on evidence specifically identifying the reasons why access was required, the Viterra Parties had declined to act upon the invitation. Weber had filed an affidavit in support of access on 18 July 2018, but that affidavit was confined to evidence of Glencore’s involvement (or lack thereof) in the malting of barley since the sale of Joe White. It said nothing about Weber’s role at Glencore, or with respect to this proceeding, beyond stating he was group counsel of Glencore.[60]
[59]Ibid, [14]-[15].
[60]The Viterra Parties filed an affidavit of Zoe Justice, affirmed 10 July 2018, giving evidence as to the relevance of the Initial Confidential Documents.

It was in the absence of any probative relevant evidence, despite there having been a full opportunity to put it before the court,[61] that the observation was made about the relative ability of the external lawyers to deal with the matter.[62] The inference that had been open to the court at that time necessarily dissipated once Weber put on evidence that clearly distinguished his positon from that of the external lawyers of the Viterra Parties.[63] It then became a matter of the court assessing that evidence, rather than drawing reasonable inferences based on an absence of evidence.
[61]See Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212, [30] (Redlich and Priest JJA and Macaulay AJA); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 384-385 [63]-[64] (Heydon, Crennan and Bell JJ); Jones v Dunkel (1959) 101 CLR 298, 308.5 (Kitto J), 312.6 (Menzies J), 320.8-321.2 (Windeyer J). The principle established in these cases applies to interlocutory hearings in which facts are required to be found: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1, 41 [128] (Merkel J), and the cases there cited.
[62]Ruling No 13, [16]. Cf Appeal Reasons, [178] (Kyrou and McLeish JJA).
[63]As to the appropriateness of drawing inferences in the absence of evidence, see Ruling No 16, [10]-[11].

The criticality of the absence of evidence was also emphasised in the conclusion to Ruling No 13. Reference was made to the “limited material presently before the court” (emphasis added).[64] It was specifically stated that Ruling No 13 ought not be treated as a final ruling. It was stated that, if the Viterra Parties were able to demonstrate a substantive need for access to the Confidential Documents, that matter would be addressed by the court upon an application being made.[65]
[64]At [19].
[65]Ruling No 13, [20].

Accordingly, each of the observations in Ruling No 13, made in the context where no evidence was put before the court on behalf of Weber as to his role, needs to be understood on the basis that the court contemplated there may be circumstances in which access to Weber might be appropriate. In this regard, it was expressly noted that the onus lay on the Cargill Parties to demonstrate the appropriateness of any restrictions sought to be imposed.[66] In so doing, reference was made to a number of cases, including Astrazeneca AB v Medis Pharma Pty Ltd[67] and Alphapharm Pty Ltd v Lundbek Australia Pty Ltd,[68] both of which were the subject of extensive consideration by Whelan JA in the Appeal Reasons.[69]
[66]Ibid, [17].
[67][2014] FCA 549 (Besanko J).
[68][2006] FCA 1358 (Lindgren J).
[69]At [10], [15]-[20].

As with Ruling No 9, when an enquiry was made by me during the current hearing, the Cargill Parties declined to make any submission about the incorrectness of any finding in Ruling No 13.[70] Further, contrary to their previous position,[71] the Viterra Parties submitted on this application that the approach in Ruling No 13 was correct as a matter of principle.
[70]In the note provided after the hearing, with respect to the finding in Ruling No 13, [8], that Fitzgerald was an employee of Glencore, the Cargill Parties stated they did not know with certainty whether or not this was the case. However, for the reasons submitted during the course of the hearing, they stated that whether or not Fitzgerald was an employee of Glencore was of no moment on this application. That is plainly correct in circumstances where the open offer for Fitzgerald to have access has been withdrawn.
[71]Cf Ruling No 16, [8]-[12].

C.3 Ruling No 16

The urgency pertaining to Ruling No 16 has already been addressed.[72]
[72]See pars 21-24 above.

The structure of the reasons in Ruling No 16 is reflective of the manner in which the application was handled. Paragraphs 13 to 20 reflect the reasons I gave orally at the end of the hearing.[73] The other paragraphs in Ruling No 16 before and after these paragraphs supplemented the oral reasons given on 11 September 2018.
[73]See further pars 21 above and 72 below.

The first substantive matter dealt with was the question of whether Weber should be granted access to facilitate settlement. It was noted that this had not previously been referred to as a reason why access was necessary.[74] I concluded on this issue by stating:[75]

In these circumstances, Weber should be given access to [the Confidential Documents] in order to properly assess the appropriateness of any further offer to settle, the amount of any such offer and the means by which to frame or explain such an offer. Naturally, external lawyers are not in a position to advance such matters without instructions.[76]

Nothing in this passage addressed whether or not Weber had authority to settle the proceeding. The observation about external lawyers not having instructions was made in circumstances where the evidence was that it was Weber, himself, who has represented Glencore, has given instructions to external lawyers from the outset of the proceeding and has been the sole person giving instructions to Glencore’s solicitors.

[74]Ruling No 16, [14].

[75]Ibid, [15].

[76]For completeness, I noted that the Confidential Documents had also been provided to the Viterra Parties’ loss or damage expert, who was also not in a position to advance any settlement discussions.

The second matter referred to in Ruling No 16 was an application made by the Cargill Parties to confine the operation of the 19 July Orders. In that regard, it was observed that if the Viterra Parties were to agree to confining the 19 July Orders they would be “giving away a vested right” to documents required to be discovered pursuant to those orders. It was further noted that the Viterra Parties’ external lawyers were entitled to take instructions before acceding to any limitation.[77]
[77]Ruling No 16, [16].

Contrary to the Cargill Parties’ submissions on appeal, the reference to a vested right could only sensibly be understood as referring to the right that had come into existence by reason of the 19 July Orders. Leaving aside the fact that in the Commercial Court there is no absolute entitlement to discovery,[78] but in the context of this case, where the parties have not been entitled to make any application for discovery without leave since orders were made to that effect on 5 October 2017,[79] a reference to such a right could not sensibly be understood to go beyond the rights created by the 19 July Orders.[80]
[78]As submitted by the Cargill Parties to the Court of Appeal: Appeal Reasons, [188] (Kyrou and McLeish JJA).
[79]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 5) [2017] VSC 798, [10]-[11].
[80]Cf Appeal Reasons, [1] (Whelan JA, dissenting), [189]-[190] (Kyrou and McLeish JJA).

Relevantly on the issue of narrowing the 19 July Orders, Weber gave evidence that he could not give any instructions to agree to any truncation or curtailment of the Cargill Parties’ continuing obligation to give discovery without access to the Confidential Documents.

The third matter referred to in Ruling No 16 was the fact that the Cargill Parties had tendered some of the Confidential Documents in their case, despite having previously argued that the documents were not relevant to any issue in the proceeding.[81] It was stated that, in circumstances where the loss or damage experts were also being provided with the Confidential Documents, Weber ought to be entitled to review those documents and give instructions.
[81]At [17].

This finding was made in circumstances where Weber had given unchallenged evidence, which was not before the court at the time of Ruling No 13, concerning his active involvement in forensic judgments and litigation strategy on behalf of Glencore, armed with his knowledge and experience at Glencore, as follows:

The forensic judgments and litigation strategy advanced by and on behalf of Glencore in this proceeding is the product of active collaboration and discussion between me, on behalf of Glencore, and the external legal representatives. That process has broken down with respect to the loss and damages and causation elements of the Cargill Parties' claims. The sale of the Cargill Parties' global malt business is relevant to the question of loss and damages and causation and, for that reason, it is necessary that I be able to have meaningful discussions about it. This is because I am unable to engage in any meaningful discussion, contrary to what has ordinarily occurred, with respect to the sale of the Cargill Parties' global malt business and the use of the information set forth therein in relation to matters of loss and damages and causation (and, more particularly, to the valuation of the global malt business), in aid of the defence of the claims made by the Cargill Parties in these proceedings.
…
By reason of my knowledge and experience at Glencore, I have historical, institutional, and transactional knowledge which may bear upon the matters raised by those documents, the nature and extent of the discovery given, and the forensic and strategic approach Glencore might take in relation to the loss and damages and causation elements. As far as I am aware, [the Viterra Parties’ solicitors] and counsel are making good faith efforts to advance the interests of Glencore to the best of their ability, but they do not know what they do not know. I cannot tell them what they do not know, and confer and exchange views, because I am unable to review these documents, and [the Viterra Parties’ solicitors] is prohibited from discussing any aspect of them with me, by order of the Court.
(Emphasis added.)

The fourth matter referred to was the fact that Weber had gone on oath to explain why access to the Confidential Documents was sought, coupled with the fact that he offered to give a confidentiality undertaking to the court.[82] Neither of these matters had previously occurred.[83]
[82]Ruling No 16, [18].
[83]Ruling No 13, [14].

Finally, reference was made to the fact that the Cargill Parties had made an open offer for another in-house counsel, Damien Fitzgerald (“Fitzgerald”) to have access to the Confidential Documents upon giving a confidentiality undertaking instead of Weber.[84]
[84]Ruling No 16, [19].

Having referred to these 5 matters, I then stated “in the exercise of the court’s discretion in balancing the relevant factors” (emphasis added), Weber would be allowed access to the Confidential Documents.[85] I also expressed the view that any one of the first 3 matters referred to “would be sufficient to outweigh the competing factors” (emphasis added).[86] As is apparent from the language used, there was no attempt to expressly or exhaustively identify all of the “relevant factors” or “competing factors” that had been taken to account in the balancing exercise involved. Indeed, nowhere in Ruling No 16 was there any attempt to do so.[87] Given that all relevant matters had been drawn to my attention immediately before giving the ruling, I considered it unnecessary to descend to this level of detail, particularly given the urgency of the matter.[88]
[85]At [20].
[86]Ibid.
[87]See also fn 21, [25(2)], [25(3)].
[88]In cases where a ruling or judgment is delivered promptly, an appellate court is entitled to assume that merely because evidence has not been expressly referred to does not mean the evidence has been overlooked: see, for example, Braham Investments Pty Ltd v Wantrup [2018] VSCA 291, [226] (Whelan, Kyrou and McLeish JJA).
C.4 Appeal Reasons
C.4.1 Parties’ submissions on this application

Both the Cargill Parties and the Viterra Parties disavowed matters attributed to their submissions by the majority in the Appeal Reasons. It is necessary to address these matters to avoid the appearance of inconsistency between the position of the parties before me[89] and before the Court of Appeal, and to ensure there is no risk of confusion should this application again be the subject of an application for leave to appeal.
[89]Both on this rehearing and previously on 11 September 2018.

The Viterra Parties took exception to the majority suggesting that they had conceded that Weber “did not have authority to make or accept offers of settlement and that his role in relation to any settlement was to give advice and make recommendations to those with such authority”.[90] They submitted that no such concession had ever been made. To make good the submission, reference was made to the transcript of the hearing before the Court of Appeal, as follows:
[90]Appeal Reasons, [173] (Kyrou and McLeish JJA). See also [179].

KYROU JA:… In other words, if [Weber] performs only a lawyer's role of giving advice and the real decision-makers are the executives in the organisation, do we extend this argument of yours and say, "Well, the [chief executive officer] needs to have these documents too because how could he be expected or she be expected to make a decision on offer", because the last sentence in the judge's paragraph 15 [or Ruling No 16] says, "Naturally, external lawyers are not in a position to advance such matters without instructions". Well, why can't that be said about Weber? When he's talking to his commercial people?
MR MYERS:Let me answer the question this way, Your Honour.
KYROU JA:Sure.
MR MYERS:There's no doubt that Mr Weber doesn't have authority to settle this matter at any level. No one would contend that and I don't [know] whether the [chief executive officer] of Glencore would have that authority without a board resolution either. The claim is for hundreds of millions. I think it's $300 million or thereabouts. But Mr Weber is the man who Glencore entrust with authority to negotiate and entrusts him ---
KYROU JA:Sorry, where do you get that from? Authority to negotiate.
MR MYERS:Because he has, as appears from paragraphs 18 and following [of Weber’s affidavit sworn 30 August 2018], the general conduct of the litigation.
KYROU JA:Yes, but what does that mean?
MR MYERS:Well, he's the person on behalf of Glencore who is responsible for the conveying of instructions in the litigation.
KYROU JA:Conveying instructions, yes. But you said ---
MR MYERS:Well, conveying either ---
…
MR MYERS:No, either by his own authority and we don't know what the limits of his authority are. They're not stated in that affidavit and probably they aren't precisely framed either. There's probably not a document which says, you know, "You can do this, you can do that and you can do something else". But he's the person who's looking after the litigation.
KYROU JA:Yes.
MR MYERS:And he's the person who's given instructions to the solicitors and with the solicitors giving instructions to counsel.
KYROU JA:Yes.
MR MYERS:So he has that role. There have been 2 – at least 2 because I've participated in 2 and the papers filed in court would show it – court-ordered mediations.
KYROU JA:Yes.
MR MYERS:And Mr Weber is the representative of Glencore in the litigation and hence in relation to negotiations. He has authority to negotiate but not ---
DR BUTTON: Sorry to interrupt my learned friend. But there's no evidence of who attended these mediations and we'd say there's also without prejudice issues concerning further discussion of what occurred at these mediations.
KYROU JA:Yes, I picked you up on the word "negotiate" as distinct from handle day-to-day routine matters because negotiate suggests making offers and responding to offers, which I thought you had said that he doesn't [have] such authority.
MR MYERS:Well, if an offer's made ---
KYROU JA:Yes.
MR MYERS:--- then if he doesn't have the authority, then he rings someone up and says, "Do I have authority to accept that?"
KYROU JA:Yes, but my point to you is why can't you do that? You being the external lawyer. If all it is seeking authority from the real decision-makers, why do you need to interpose another lawyer who's quite different from a locally admitted lawyer – which is another issue – as part of the train of communication?

MR MYERS:Because Mr Weber's the person whom Glencore trust. They don't know me.
KYROU JA:Yes, but ---
MR MYERS:They trust someone.
KYROU JA:Very well.
MR MYERS:This is why he's the person in charge.
(Emphasis added.)

In light of the exchange referred to above, on this rehearing of the application the Viterra Parties submitted that the Court of Appeal had not been informed that Weber did not have any authority to settle the proceeding. Further, the Viterra Parties stated they informed the Court of Appeal that there would be limits to Weber’s authority to settle, but those limits were not disclosed. It was contended before me that this is quite different to a purported concession that he had no authority at all to make or accept offers. The Cargill Parties made no competing submission as to the effect of the exchange in the Court of Appeal referred to above. Moreover, the Cargill Parties said they accepted the Viterra Parties’ position with respect to Weber’s authority regarding settlement.[91]
[91]See further par 98 below. For completeness, this position ultimately adopted by the Cargill Parties conflicts with the position adopted in their written submissions, where they cited the Appeal Reasons at [173] and said they relied upon the purported concession.

As for the Cargill Parties, the majority of the Court of Appeal stated that the Cargill Parties submitted on the application for leave to appeal that “there was no factual basis for the judge’s conclusion that [Weber] was in a different position to external lawyers in relation to the assessment of, and the provision of advice about, settlement”.[92] Before me, the Cargill Parties stated that they had not made such a submission to the Court of Appeal. I was referred to the transcript in which a proposition put to the Cargill Parties’ counsel was acceded to on the “hypothesis” that had been put to her, rather than being based on the facts of the case.[93] The hypothesis put forward by Kyrou JA was:

If he’s really in the position of a lawyer, in a traditional way, then what does [Weber] add to the external lawyers? Why would he be in a better position than the external lawyers to make recommendations to those who make decisions?

Kyrou JA then put forward the proposition that Weber was “in a different position to the external lawyers, because he’s not an officer of this court” (emphasis added).[94]

[92]Appeal Reasons, [169].

[93]Senior counsel for the Cargill Parties suggested the proffering of the hypothesis by the Court of Appeal and the submission in response explained “how there was at least room for misunderstanding on the part of the learned majority in the Court of Appeal”.

[94]See also par 84 below.

In contrast to this hypothesis, the Cargill Parties submitted to the court on 11 September 2018 that Weber was very close to the “commercial heart” of Glencore,[95] demonstrated by the fact that he was able to swear about matters concerning its business without obtaining that information from another source.[96] Further, reference was made on 11 September 2018 to the evidence of Weber to the effect that he had reviewed virtually all of the discovered documents, which, the Cargill Parties suggested, would involve a review of over 50,000 documents.
[95]See also pars 180-181 below.
[96]This same submission was made to the Court of Appeal.

Leaving aside Weber’s extensive experience at Glencore, to which I refer below,[97] the first of these matters alone, put forward as part of the Cargill Parties’ position as to why Weber should not get access, readily distinguished the position of Weber from that of any external lawyers. Further, there was no evidence to suggest any of the external lawyers had personally undertaken such a “Herculean task”[98] with respect to inspection.
[97]See pars 94-95 below.
[98]To use the language of the Cargill Parties’ counsel. For further detail, see par 156 below.

Furthermore, the Court of Appeal was informed, as is the fact, that Weber has been in court for a substantial part of the trial.[99] This position can be contrasted with many of the external lawyers, who only appear from time to time, depending on what issues are being addressed.[100]
[99]The Court of Appeal was told that Weber was in court “pretty much every day”.
[100]The Viterra Parties have 3 senior counsel appearing at trial (and 2 different senior counsel for interlocutory matters as well as trial senior counsel on occasion), together with many juniors.

At the rehearing of this application, the Cargill Parties again did not suggest that there was no factual basis for concluding that Weber was in a different position to external lawyers concerning settlement; on the contrary, consistent with their earlier approach, a number of distinguishing features were relied upon in seeking to demonstrate why it was inappropriate for Weber to have access.[101] Further, based on Weber’s evidence, it was acknowledged that, as the person representing Glencore in conducting this proceeding, Weber was likely to be more influential than external lawyers.[102] Shortly thereafter, the Cargill Parties submitted Weber “must” be in a different position to the external lawyers. The Cargill Parties further stated “it cannot be argued there isn’t a difference”.
[101]See, for example, par 204(9), (10) and (11) below.
[102]This acknowledgment was premised on “if that evidence [of Weber] is accepted”. There was no real issue that Weber was and remains responsible for the conduct of the proceeding on behalf of Glencore.

C.4.2 Further observations

Having embarked upon a consideration of the Appeal Reasons in response to the submissions made on this rehearing, it is appropriate to respond to various other observations to avoid any suggestion that all relevant or potentially relevant matters have not been taken into account.[103] Broadly, I will deal with these matters in the order in which they appear in the Appeal Reasons.
[103]The Viterra Parties submitted such an exercise was unnecessary on a “simple matter of practice and procedure” arising during the course of the trial, and that the court should not “stoop” to deal with the majority’s observations. However, the Cargill Parties did not accede to this approach when the matter was raised.

It was found that, in Ruling No 16, I failed to refer to evidence about trade rivalry in the barley business between the Viterra Parties and the Cargill Parties.[104] There are at least 3 responses to this. First, Ruling No 16 did not purport to exhaustively state each of the matters that had been taken into account.[105] Secondly, and in any event, the relevant evidence was referred to at footnote 31.[106] Thirdly, and further to the second point, the evidence of Weber stating that he did not deal “at all” with “the matters referred to” in “evidence previously led by the Cargill Parties” was referred to at footnote 32. That evidence to which Weber was responding was the very evidence concerned with rivalry with respect to barley trading (and merger and acquisitions targets in the future).
[104]Appeal Reasons, [152] (Kyrou and McLeish JJA).
[105]See par 61 above.
[106]Footnote 31 referred to Ruling No 13, [10].

The majority suggested that the likely inference was that I overlooked the existing trade rivalry in barley in the exercise of my discretion.[107] As a matter of fact, I did not.[108] The parties were informed of this fact during the course of the rehearing of this application. Leaving aside footnotes 31 and 32 of Ruling No 16, the transcript on 11 September 2018 shows that, in the hearing conducted immediately before I gave Ruling No 16 orally (unrevised), reference was made to the parties’ involvement in grain or barley 11 times.[109] Further, after the Cargill Parties indicated they would seek a stay with respect to the proposed orders for access and sought formal reasons, and before Ruling No 16 was delivered, I re-read the Cargill Parties’ written submissions to ensure every matter raised on the application was expressly referred to in Ruling No 16. Savona’s affidavit sworn 21 August 2018 was referred to in those submissions.[110] More importantly, Glencore’s involvement in grain was expressly referred to 4 times.[111]
[107]Appeal Reasons, [153].
[108]Cf Appeal Reasons, [2], [41]-[42] (Whelan JA, dissenting).
[109]Barley was expressly referred to 7 times and grain was referred to 4 times. The last reference to barley was in the Cargill Parties’ submissions in reply, in which it was confirmed that the Cargill Parties relied upon Savona’s 21 August 2018 affidavit to the effect that the Confidential Documents do “contain that information about barley”.
[110]Paragraph 3(b).
[111]Paragraph 33 referred to Glencore’s “’day-to-day’ grain transactions”, Weber’s involvement and what his affidavit “does not say” (see also Ruling No 16, [25(5)], which expressly referred to this submission); par 34 referred to Glencore’s “grain deals” and the absence of an undertaking from Weber not to be involved in such deals in the future (see also Ruling No 16, [24(6)], which expressly referred to this submission); par 36 referred to Cargill, Inc’s and Glencore’s competing in allied markets “particularly grain”, as well as Glencore’s intention to grow its agricultural unit, including its “grain business”.

In drawing the inference that the evidence of existing trade rivalry in barley had been overlooked, the majority stated that it was of “such potential significance that it would be expected that the judge would have addressed the matter directly rather than inferentially”.[112] In this regard, I repeat what is stated in the previous paragraph. It was a fact about which there was no controversy. Further, in Weber’s affidavit sworn 30 August 2018 he stated that transactions involving grain were handled by Glencore’s in-house legal staff based in Rotterdam, the Netherlands, and were “not dealt with by [Weber] at all” (emphasis added). This evidence was given in direct response to Savona’s evidence on the topic.[113] Furthermore, this evidence of Weber dealt directly with the issue of trade rivalry insofar as it concerned barley (and, for completeness, any future acquisitions with respect to sectors involving agricultural commodities). In short, the matter had been dealt with directly in the uncontroverted evidence. That evidence was no less probative by reason of Weber’s further evidence that he was not involved in “those day-to-day matters” and did not personally engage in “day-to-day trading” or legal work for day-to-day grain transactions.[114]
[112]Appeal Reasons, [155].
[113]As to Savona’s evidence, see Appeal Reasons, [69] (Kyrou and McLeish JJA).
[114]Cf Ruling No 16, [25(5)] and the reference to the Cargill Parties’ submission concerning what Weber’s 30 August 2018 affidavit “did not say”. See also pars 204(9) and 220(14), (15) below.

With respect to the “potential competitive rivalry between Cargill, Inc and Glencore in relation to future agricultural acquisitions”, it is correct that no reference was made to that point in either Ruling No 13 or Ruling No 16.[115] As may be seen from the previous paragraph, it was squarely addressed by Weber with respect to his possible future involvement. Further, although this issue was referred to in very broad terms in the evidence, it was given virtually no attention in submissions. In my view, this is not surprising in circumstances where I had direct evidence of actual rivalry, and this issue was only concerned with the mere possibility of competitive rivalry in the future. Furthermore, Weber swore, without being challenged, that he would not have any involvement in relation to any potential agricultural acquisitions.
[115]Appeal Reasons, [156] (Kyrou and McLeish JJA).

In these circumstances, although the Cargill Parties’ evidence of this “potential” rivalry was before the court, and was read by me in preparation for the hearing, it appeared to be of little weight in the balancing exercise with which I was required to engage. To reiterate, for reasons explained,[116] neither Ruling No 13 nor Ruling No 16 purported to exhaustively set out all of the relevant factors in the exercise of the court’s discretion.
[116]See pars 22-23, 61 above.

The majority stated that the status of the parties as current trade rivals was a factor that weighed in the balance against the matters favouring disclosure which were referred to in Ruling No 16, including the first 3 fundamental differences referred to in that ruling when comparing it with Ruling No 13.[117] That reflects the view that I held at the time Ruling No 16 was delivered.[118] There was no suggestion otherwise; on the contrary, although not individually specified, all relevant or competing factors were referred to when deciding in favour of granting access.[119]
[117]Appeal Reasons, [163]. See pars 53-58 above.
[118]See par 61 above.
[119]Ruling No 16, [20].

Moving to another issue, the majority referred to my conclusion that the difficulties associated with Weber being located outside the jurisdiction and the absence of an undertaking as to damages were not sufficient to deny Weber access to the Confidential Documents. The majority stated this “was based on the fact that the [Viterra Parties] will remain subject to the jurisdiction of the court for the foreseeable future and have significant assets in Australia”.[120] It was further stated I did not address the difficulty that the Viterra Parties cannot be liable for a breach of Weber’s Undertaking simply because they remain subject to the jurisdiction of the court and have assets in Australia.[121] Then, after referring to the possibility that it may not be able to be shown that the Viterra Parties have some relevant connection to any future breach by Weber, the majority concluded:[122]

In our opinion, the fact that the judge did not take account of the limitations on the availability of sanctions against the [Viterra Parties] if [Weber] were to breach his undertaking means that a material consideration was not taken into account.

[120]Appeal Reasons, [160].

[121]Ibid.

[122]At [161].

This conclusion appears to misunderstand the purpose and scope of what was stated in Ruling No 16 with respect to Weber’s location. It was expressly stated that the fact that Weber was out of the jurisdiction “continues to be a relevant factor”,[123] ergo recognising possible limitations upon the availability of sanctions against Weber, whether any potential breach was “inadvertent or otherwise”.[124] Further, the reference to the Viterra Parties having assets within the jurisdiction, and being subject to the jurisdiction of the court, was made in circumstances where the Cargill Parties submitted that there was “practically speaking, nothing” the court could do if there were a breach,[125] and that Weber had some material involvement in the barley sector meaning there might be an incentive or opportunity for the Viterra Parties, or, more specifically, Weber acting in the perceived interests of the Viterra Parties, to breach Weber’s Undertaking.
[123]Ruling No 16, [25(2)].
[124]To quote from Ruling No 13, [18].
[125]This is the language used in the Cargill Parties’ submissions; see also Ruling No 16, [24(3)].

Another issue addressed was Weber’s authority with respect to settlement, which has already been discussed above.[126] Related to this issue was evidence given by David Mattiske (“Mattiske”), who was, at relevant times, the managing director of Glencore Grain Pty Ltd in Australia and New Zealand. In Ruling No 16, it was noted that Mattiske had given evidence that the Viterra Parties had “offered Cargill money” to settle the proceeding. That evidence was relied upon for no more than the proposition that “settlement has been attempted” in the past.[127] Naturally, the details of any settlement discussions were not disclosed to the court. It was the mere fact that there had been some discussions in which an offer, no matter how trifling, had been put that made the evidence relevant to the application.[128] In any event, as no reliance has been placed upon this evidence on the further hearing of this application, I say nothing further on the issue.
[126]See pars 53, 63-64 above.
[127]Ruling No 16, [14].
[128]The majority stated that the Cargill Parties submitted to the Court of Appeal that the evidence was subject to an objection: Appeal Reasons, [167]; see also proposed ground 2 of the application for leave to appeal: Appeal Reasons, [164]. The evidence given by Mattiske was directly responsive to the question that had been asked of him. Although objection was taken by the Cargill Parties to the answer given insofar as it referred to money having been offered, objection was also taken by the Viterra Parties to the Cargill Parties’ objection in light of the way in which the question had been framed: see Appeal Reasons, [166]. The court was not asked to rule on the matter, and the evidence was not the subject of any ruling as to its admissibility or otherwise. Further, the issue of the objection was not raised with me on 11 September 2018. On the contrary, the Cargill Parties’ counsel submitted that “[o]ther than the evidence [of Mattiske], no party has put on evidence of that matter”. There was no submission on 11 September 2018 that the evidence was irrelevant or could not be taken into account because of any claim for without prejudice privilege.

The majority stated that it emerged during oral argument before the Court of Appeal that “Weber lacked authority to make or accept offers of settlement”.[129] As already noted,[130] the Viterra Parties do not accept that this did in fact emerge. In any event, the Court of Appeal continued:[131]

This exposed an important factual issue which the judge did not explore.

The decision whether or not to explore an issue not ventilated by the parties on a contested application is a matter a trial judge is required to make from time to time. It is not apparent to me, given I had very experienced counsel appearing for the parties, why there was any need for the court to go beyond the evidence and submissions put. Further, as raised on this rehearing of the application,[132] any such exploration would have been likely to have encroached upon areas of legal privilege.

[129]At [175].

[130]See pars 63-64 above.

[131]At [175].

[132]See par 91 below. See also par 121 below.

The majority said it was unclear whether the “implicit finding” that it was necessary for Weber to have access to the Confidential Documents for settlement purposes and to give instructions was based on the premise that Weber had authority to give such instructions.[133] Then it was said:[134]

As there was no evidentiary foundation for that premise, in so far as the implicit finding was based on it, it could not be supported.

In Ruling No 16, I made no finding about the extent of Weber’s authority regarding settlement. The absence of such a finding was in circumstances where the matter had not been raised before me at all, and there was no evidence upon which I could make any such finding which would be soundly based. No such finding was necessary in order to distinguish Weber’s position from those of the external lawyers.[135]

[133]At [176].

[134]Ibid.

[135]Cf observations by Whelan JA, Appeal Reasons, [44], and the cases there referred to. See also pars 58, 66-68 above.

The majority suggested there had been a failure to address why Weber was in a better position than the Viterra Parties’ external lawyers to give advice and make recommendations about settlement.[136] This issue has already been largely addressed.[137] In Ruling No 13, there was no suggestion that the Confidential Documents might be used for the purposes of settlement.[138] Although settlement is always “a live matter in any commercial dispute”,[139] the contrast between what confronted the court at the time of Ruling No 13, when compared with Ruling No 16, was that Weber, ultimately, had gone on oath on the issue as to its significance. Previously, not only had he not given evidence on this matter, but the issue of the Confidential Documents being used for the purposes of settlement was not even raised. Further, in circumstances where Weber was, and remains, in-house counsel at Glencore, a position he has held for many years, he has had responsibility for the conduct of the case from the outset and he has been very hands-on in this role,[140] the different, and better, position of Weber appeared to be readily apparent on the evidence before the court on 11 September 2018.
[136]At [177].
[137]See pars 46-47, 49, 53, 58, 63-69, 81 above.
[138]This was referred to in Ruling No 16, [14]: see par 53 above.
[139]Appeal Reasons, [171], [174].
[140]See pars 66-68 above and 94 below.

Much appeared to be made by the Cargill Parties of Weber’s evidence that he was not involved in the “day-to-day” matters or “day-to-day” trading with respect to Glencore’s grain business. In my view, when Weber’s evidence is considered as a whole, there is little basis for the submission that this evidence ought to give rise to an inference that Weber had some undisclosed material involvement in commercial operations, or, whatever his involvement, that he was failing to disclose the extent of his activity in Glencore’s grain business.[283]
[283]See par 225 above.

As to the risk of inadvertent or accidental use or disclosure of information contained in the Confidential Documents, that risk necessarily increases every time the number of persons given access to the confidential information is increased.[284] In some circumstances, this risk might also be increased by reason of the “electronic age” in which we live.[285] But, naturally, the existence of the risk, in and of itself, cannot be a bar to access. A proper assessment needs to be made of any risk in the particular circumstances of the case as part of the balancing exercise involved.
[284]See par 176 above.
[285]To use the language of Sundberg J in InterPharma Pty Ltd v Commissioner of Patents [2008] FCA 1422, [19(a)]: see fn 212 above.

In my view, with respect to each of the meanings of inadvertent or accidental disclosure,[286] the risk is relatively low. There are a number of reasons for this.
[286]See par 176 above.

First, beyond his involvement in this proceeding, Weber rarely works on matters concerned with the grain industry or the agricultural sector more generally.[287]
[287]See pars 103, 145 above.

Secondly, even if, in the near future, Glencore were to seek to acquire a business from within the grain sector, or a malting business, there is a real prospect that Weber would not be involved.[288] In any event, even if he were involved, given his role as conventional in-house counsel and his lack of any meaningful role in commercial decision-making, the risk of inadvertent or accidental disclosure would be minimal.
[288]See further par 255 below with respect to the absence of an undertaking in this regard.

Thirdly, this is not a case where all legal work needs to be performed by a single in-house counsel. Given Glencore’s size and the number of in-house counsel at its disposal,[289] if there were any likelihood of inadvertent or accidental disclosure arising if Weber were to be involved in a particular transaction, Weber would be perfectly capable of recognising that and alerting his superiors so that another in-house counsel could become involved to the extent necessary to avoid the risk.[290]
[289]See pars 73, 102 above.
[290]Although there was not a submission to this effect, it is a practical matter that ought to be the subject of these reasons.

Fourthly, Weber is a very experienced lawyer who fully understands the gravity and nature of a confidentiality undertaking, whether to the court or otherwise. So much is demonstrated by his evidence concerning questions from other Glencore personnel in the past touching upon information that has been the subject of previous confidentiality undertakings.[291] Weber has demonstrated he is perfectly capable of handling these situations, and there is no reason why the court ought not fully expect he will able to handle them properly in the future.
[291]See pars 144, 180(8) above. See also Ruling No 16, [27].

Even if the risk is greater than I have assessed it, on no view of the evidence could the risk be properly considered to be so serious as to make it an unacceptable risk when viewed in the context of all the relevant factors disclosed on this application.

To the possible contention that, because of the volume of documentation involved, Weber could not be certain as to whether or not he had breached his confidentiality undertaking in the past,[292] there is little substance to this point. There is no suggestion that Weber, or any other lawyer who has given the confidentiality undertaking, is not capable of comprehending the scope of the information involved. Further, experienced lawyers are often presented with large amounts of confidential information that are the subject of restrictions which it is reasonably expected they will maintain. The evidence shows that Weber himself has been placed in this position in the past, including in this proceeding.[293]
[292]It was unclear whether this submission was maintained: see fn 170 and par 180(9) above.
[293]See pars 116, 156, 180(9) above.

With respect to the relevance of the Confidential Documents to any settlement of this proceeding, self-evidently documents concerning the amount of any loss suffered are relevant to any assessment of any settlement proposal.[294]
[294]See Ruling No 16, [14].

As was stated by the majority, “irrespective of whether there had been prior settlement discussions [or, I interpolate, presently ongoing settlement discussions], settlement is a common feature of commercial litigation and the parties have an overarching obligation to use reasonable endeavours to resolve disputes”.[295] The Cargill Parties’ reliance upon the absence of evidence of a “real desire or intention” to engage in settlement discussions is of only minor significance. Intentions with respect to settlement are normally expressed without prejudice. Further, for the court to come to the conclusion that, given the overarching obligations imposed under the Civil Procedure Act, there was not a desire on the part of the parties to reach a satisfactory commercial result to this very expensive, and presumably disruptive, proceeding would require some probative evidence. There is no evidence to that effect.
[295]Appeal Reasons, [174]. See also [44] (Whelan JA, dissenting).

Weber has given evidence that, amongst other reasons, he wishes to have access to the Confidential Documents for settlement purposes. There is no good reason why this should not be taken at face value.

On the evidence, there is no proper basis to make a specific finding as to whether or not settlement discussions might be compromised if Weber were not given access to the Confidential Documents. No such finding either way is necessary. For reasons discussed,[296] Weber has a unique role in this litigation with respect to understanding the issues in the proceeding and understanding Glencore’s position more generally. If settlement of this litigation is to progress, it would be highly likely that Weber would be the person performing “much that is needed to be done to promote settlement” before any settlement is reached.[297] Thus, Weber ought to have documents relevant to assessing any settlement proposals, including the Confidential Documents.
[296]See pars 58, 94-95, 180(4)-(7) above.
[297]Cf Appeal Reasons, [44] (Whelan JA, dissenting).

In the context of the relevance of the Confidential Documents to settlement, the Cargill Parties submitted it is necessary to consider whether others at Glencore, to whom Weber reports, have similar knowledge of the commercial and strategic factors of which Weber is aware. The Cargill Parties did not nominate who these persons might be. Regardless, the submission does not advance the Cargill Parties’ position.

First, whomever is being referred to also, necessarily, does not have access to the Confidential Documents.[298] Secondly, there is no suggestion that anyone employed by Glencore has the same or even a remotely similar understanding of the issues in this proceeding to Weber’s understanding.
[298]Unlike previously, there was no suggestion by the Cargill Parties that someone other than Weber might be given access: see par 202 above.

As to the absence of an undertaking from the Viterra Parties or Weber as to his future involvement in relation to grain trading, including barley, or future transactions in agriculture by way of acquisitions, divestments or joint ventures, I have taken the absence of such an undertaking into account.[299] For reasons already discussed,[300] the likelihood of Weber being in a position to have a material role with respect to the grain sector or the agricultural industry more generally appears quite remote. Even if this position is incorrect, and Weber were to have some significant involvement in the foreseeable future, Weber would be perfectly capable of determining whether or not issues may arise with respect to his involvement in such transactions in light of Weber’s Undertaking, and of taking appropriate steps.[301]
[299]Cf Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663, [11] (Gordon J); Conor Medsystems, Inc v The University of British Columbia (No 4) [2007] FCA 324, [15] (Finkelstein J). See also Ruling No 16, [24(6)], [25(5)].
[300]See pars 242-249 above.
[301]Including, as set out in par 245 above.

On the question of undertakings, I have been invited to reconsider whether there is a significant difference between an implied undertaking to the court by reason of inspection of compulsorily produced discovered documents and an undertaking to the court as to confidentiality.[302]
[302]See Ruling No 16, [18].

In some respects, this factor is historical, referring to the different approaches of the Viterra Parties between the hearings giving rise to Ruling No 13 and Ruling No 16. Accordingly, I will deal with it briefly.

An implied undertaking to the court requires the person the subject of that undertaking to only use the information disclosed for the purposes of the proceeding.[303] Although a breach of this undertaking is punishable by contempt, the nature of the undertaking is less restrictive than Weber’s Undertaking. Weber’s Undertaking not only precludes Weber from using the information in the Confidential Documents for purposes other than those of the proceeding, but also confines the disclosure of the information to those specified in paragraph (1) of Weber’s Undertaking.[304] In particular, Weber’s Undertaking requires him not to disclose the information to other employees of the Viterra Parties. No such restriction is required by reason of an implied undertaking.[305] In short, the difference between the 2 undertakings is significant. That said, little turns on this as the present exercise is to consider whether access ought to be granted in the current circumstances, including where Weber has given Weber’s Undertaking.
[303]See fn 205 above.
[304]See annexure “A” below.
[305]For completeness, it ought to be noted that the Cargill Parties were not satisfied with an implied undertaking with respect to the disclosure of the Confidential Documents. They insisted upon confidentiality undertakings before any access to the Confidential Documents was given to any of the opposing parties’ external lawyers or experts. Such an insistence seems to run counter to their submission on this point.

With respect to whether Weber requires access in respect of the outstanding application to narrow the 19 July Orders (which orders were not the subject of any application for leave to appeal), the vested right created by those orders is a right of the Viterra Parties.[306] In the circumstances, there is no proper reason why the Viterra Parties’ external lawyers ought not be entitled to take instructions before acceding to a limitation on the operation of orders previously made after a contested hearing, which limitation would deprive the Viterra Parties and their representatives from documents relevant to the proceeding.
[306]See pars 54-55 above.

Further, it is no answer to invite the court to simply treat the application to limit the 19 July Orders as being opposed on all issues because of the inability of the Viterra Parties’ external lawyers to take proper instructions.[307] This submission runs contrary to the overarching obligations, which require the court, as well as the parties, consistent with the due administration of justice, to narrow the issues in dispute wherever appropriate.[308]
[307]See par 194 above.
[308]Civil Procedure Act, ss 7, 8, 9, 10, 11, 23.

In any event, given Weber’s experience and knowledge,[309] it could not be assumed that the external lawyers would be in a position to raise all matters that Weber would consider relevant with respect to a contested hearing regarding the proposed narrowing of the 19 July Orders.
[309]See pars 58, 94-95, 180(4)-(7) above.

As to the tender of some of the Confidential Documents, the Cargill Parties have queried whether it is necessary for Weber to have access to all the Confidential Documents. There are a number of responses to this.

First, senior counsel stated that the Cargill Parties’ position was that the documents should not be considered separately (with the exception of documents 4 and 50).

Secondly, it would not be satisfactory to confine Weber’s access only to those documents that the parties have chosen to tender. As to the Cargill Parties, presumably the documents tendered were on the limited basis that they considered those documents relevant to advancing their case or to harming the Viterra Parties’ case, or both. As to the Viterra Parties, the documents they have chosen to tender were without the benefit of instructions as to which of the Confidential Documents, including those not tendered, ought to be tendered.

Thirdly, the court cannot be satisfied that the external lawyers or the independent expert are capable of fully appreciating the significance of the Confidential Documents without Weber’s involvement. In light of Weber’s evidence, the contrary position must be found. This applies regardless of the basis of the tender, the nature, provenance and date range of the tendered documents and the role or potential role of those documents in the wider proceeding (particularly in light of the Cargill Parties’ position that the Confidential Documents ought not be considered individually by the court in determining the outcome of this application).

With respect to confidential information relating to a third party or third parties, this has been dealt with in Ruling No 16.[310] In any event, having had the benefit of the further matters raised on the rehearing, I remain of the view that the considerations of the due administration of justice in the conduct of this proceeding mean that any private arrangements with respect to non-disclosure ought to yield to access being granted in the limited circumstances proposed. For the reasons expressed with respect to the Cargill Parties, the confidential information of any third party would be sufficiently protected by the limitations and undertakings proposed.
[310]At [21]. See also pars 86-87, 199-200 above.

For completeness on this topic, the Cargill Parties’ position on this issue is problematic. First, notwithstanding ample time in which to assemble such materials, no evidence was put forward by any third party, either directly or through the Cargill Parties on information and belief, expressing concern about disclosure under compulsion of an order of the court.[311]
[311]See fn 61 above.

Secondly, the evidence of Savona went no higher than stating she had been informed by another employee of Cargill, Inc, Frank van Lierde,[312] that he was of the opinion that disclosure of the documents would jeopardise Cargill, Inc’s relationship with third parties and would have the effect of making those parties disinclined to continue to participate in this sale process.[313]
[312]He holds the position of enterprise leader of food ingredients and bio-industrials at Cargill, Inc.
[313]No objection to the admissibility of this opinion evidence was made. Similar evidence was given by Savona in her affidavit sworn 27 August 2018: see fn 176 above.

Thirdly, and in any event, the fact that parties choose to sign non-disclosure agreements does not result in confidential documents being beyond the court processes and procedures. Even accepting the evidence of the Cargill Parties in an unqualified manner with respect to the position of the third parties, the court has the ultimate responsibility to ensure the due administration of justice in the conduct of a proceeding before it.

Fourthly, introducing the regime proposed by the Cargill Parties[314] will provide yet another basis for the parties to engage in interlocutory disputes in a trial that commenced over 5 months ago, and a proceeding that was instituted over 4 years ago. The history of this matter suggests it is highly likely any such regime would lead to further interlocutory disputes, with the delays to the trial that would necessarily follow.[315]
[314]See pars 85, 200 above.
[315]Cf Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, 323 [56]-[57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

As to the position with respect to Fitzgerald,[316] I propose to refrain from considering this issue further. On the previous occasion, I took it into account by reason that an open offer was the subject of evidence before the court, demonstrating a willingness of the Cargill Parties to disclose the Confidential Documents to Fitzgerald. In circumstances where that offer has now been withdrawn, I will not take it into account as a factor weighing in favour of disclosure.
[316]See pars 85, 202 above.

As to the forum of this litigation, the Cargill Parties submitted the fact that Cargill Australia decided to sue Glencore, which is located in Switzerland, was not a relevant factor because the jurisdiction for the litigation was determined by the terms of the Acquisition Agreement and a confidentiality deed executed by the parties before the Acquisition Agreement was entered into. Both these documents have “governing law” provisions stating New South Wales and Victoria (respectively) were the jurisdictions to which the parties exclusively submitted. Further, it was submitted that the Confidential Documents were not documents of Cargill Australia, but Cargill, Inc and that Cargill, Inc was only a party by reason that the Viterra Parties chose to join it as a third party.

This matter is of little moment. The Confidential Documents relate to the loss claimed by Cargill Australia. Whether they are documents of Cargill, Inc or Cargill Australia does not alter the fact that they would be discoverable whether or not Cargill, Inc was a party.

Further, and in any event, whatever the governing law clauses of the transactional documents state, the Cargill Parties chose to deal with a multi-national organisation, based in Switzerland, in deciding to purchase Joe White. Thus, it would have been foreseeable that there was a real possibility of future litigation in such a large transaction, with at least 1 defendant located overseas.

Furthermore, as stated in Ruling No 16,[317] Cargill, Inc and Cargill Australia decided that Cargill Australia would sue Glencore, a foreign corporation, in this jurisdiction. They were under no obligation to sue. A likely consequence of choosing to sue in this jurisdiction was that, in the ordinary course, information concerning the proceeding (whether or not there were third party proceedings) would need to be considered by persons who reside outside the jurisdiction.
[317]At [25(4)].

That having been said, this particular matter seems to be of minor weight when considering the large number of other significant factors involved. Nonetheless, to the extent that the governing law clauses dictate the jurisdiction for any proceedings, that matter has been taken into account.

With respect to documents 4 and 50, I stated the following in Ruling No 16:[318]

In the event that the court were minded to grant access, the Cargill Parties submitted that access should not be given to documents numbered 4 and 50 of the [Confidential Documents]. This was put on the basis that those documents expressed the aspirational position of Cargill, Inc, and the figures contained in them were not based upon any valuation method.

The Cargill Parties have not demonstrated any good reason why these 2 documents ought to be excluded. The double hearsay evidence put forward in opposition to the granting of access,[319] referred to in the preceding paragraph, does not sit comfortably with the contents of the documents themselves. The first of the documents, on its face, adopts valuation methods, however rudimentary. The second document seems to use the same figure as that in the first document, albeit in the first document it is used as part of a range. In any event, even if that hearsay evidence were accepted, the documents are still relevant. Further, the distinction now sought to be drawn was not previously raised by the Cargill Parties in resisting the granting of access to external lawyers and experts.

[318]At [30]-[31].

[319]The affidavit of the Cargill Parties’ solicitor relied upon instructions from the Cargill Parties’ in-house counsel, who was not the author of either of the documents in question. Further, the source of in-house counsel’s information was not disclosed. The same failure to disclose the source of information specifically with respect to these 2 documents existed in a previous affidavit sworn by in-house counsel on 21 August 2018.

Assuming, without deciding, that the Cargill Parties have the ability to revisit this discrete issue in light of their lack of success on the point before the Court of Appeal,[320] it suffices to say that none of the further evidence or submissions has altered my view with respect to what was set out in Ruling No 16.
[320]See [1] (Whelan JA, dissenting), [215]-[221] (Kyrou and McLeish JJA).

On both 12 and 13 September 2018, the parties were unable to agree as to the access regime to be ordered.[321] As noted in Ruling No 16,[322] the access regime ordered on 14 September 2018 was largely in accordance with the Cargill Parties’ proposed regime if access were to be other than by way of inspection of hard copy documents.
[321]See pars 157-158 above.
[322]See fn 37.

In my view, it would be inappropriate to limit access to the physical inspection of hard copy documents.[323] The volume of the Confidential Documents is not insignificant. They include sizeable spreadsheets. To only allow hard copies to be inspected at solicitors’ offices would be to adopt a course which would be far less efficient than other options available. Of course, the ability to conduct the inspection itself in an efficient manner is also enhanced by electronic access. There is the ability to search and arrange the documents in a way that is not available with hard copy documents. As to any increased risks of Weber’s Undertaking being breached if electronic access is given, the Cargill Parties’ own evidence demonstrates that the regime proposed has the necessary attributes of secure protection of the relevant information.[324]
[323]For completeness, this trial has been conducted electronically.
[324]See par 159 above.

In the circumstances, where there is a secure means of providing access electronically (as previously ordered),[325] there is no legitimate basis for restricting access to physical inspection of hard copy documents.
[325]See fn 3, order 2. There were some minor changes to what had been proposed by the Cargill Parties, but it is unnecessary to deal with them in circumstances where they were fully canvassed before the Previous Access Orders were made.

As would be apparent from what has been set out above, in my view, when balancing all the competing factors set out above, including the protections discussed, they weigh overwhelmingly in favour of access being given to Weber on a confidential basis. To be clear, having considered each of the factors identified by the Cargill Parties,[326] with the exception of those concerning Fitzgerald,[327] I am of the opinion that it is in the interests of the due administration of this proceeding for Weber to be granted access to the Confidential Documents for each of the litigation purposes identified above.[328]
[326]See par 204 above.
[327]See pars 60, 85, 155, 202, 271 above.
[328]See, for example, pars 53-58, 91-95, 113-114, 117, 119, 121, 213-215, 237, 249-253 above. Cf par 185 above.

Consistent with the manner in which the Cargill Parties put their submissions,[329] this conclusion has been reached without taking into account any evidence led at trial concerning the involvement of Cargill, Inc or Glencore in the grain sector (or the agricultural industry more generally) or the decision-making processes of Cargill, Inc.[330] When those matters are taken into account, the conclusion is reinforced. The fact that the Cargill Parties have already given evidence openly on such topics weakens the claim for confidentiality as against Weber. Further, insofar as the Confidential Documents are concerned with Cargill, Inc’s decision-making processes, this strengthens the Viterra Parties’ claim for Weber to have access to assess the information, as not only has that topic been the subject of evidence at trial, but it has the potential to be relevant to a number of issues in this case.
[329]See par 162 above.
[330]See pars 15-18 above.

H. Conclusion

On 11 September 2018, after considering all the matters then before the court, I pronounced a ruling that Weber would be granted access to the Confidential Documents upon the giving of a confidentiality undertaking to the court. For the reasons stated in Ruling No 16, I was firmly of the view that, in applying the applicable legal principles, the due administration of justice required such access to be given.

Having reheard the application, and having taken into account all the matters now before the court, including the further evidence and submissions, the changes to the parties’ previous positions as reflected in those submissions, and having had the benefit of the Appeal Reasons, in exercising my discretion afresh, I remain of the view that access must be granted to Weber. Indeed, my view is firmer than that previously held, particularly in light of the further evidence of Weber and the undertaking as to damages to be given by the Viterra Parties.

Subject to any further submissions the parties may wish to make with respect to the electronic access regime proposed,[331] upon the reaffirming or giving of the required undertakings, orders will be made accordingly.
[331]See fn 242 above.

---

ANNEXURE A

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST	S ECI 2014 00146
BETWEEN:
CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff
AND
VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants
AND
CARGILL, INCORPORATED AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Third parties

CONFIDENTIALITY UNDERTAKING

I, Mr MATTHEW MICHAEL WEBER, of Glencore International AG
HEREBY UNDERTAKE TO THE COURT in relation to the copies of documents in the list produced by the plaintiff in accordance with orders made by the Honourable Justice Elliott on 19 July 2018 (including the documents listed in Schedules 1 and 2 in the list of documents dated 22 August 2018) and copies of any other documents discovered or otherwise produced pursuant to those orders (Confidential Documents) as follows:

(1) I will not disclose the contents of the Confidential Documents in any way to any person other than:

(a) Lawyers working at King & Wood Mallesons in this proceeding who have signed an undertaking in the form annexed to the Orders dated 7 August 2018 (7 August Undertaking) or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin;

(b) The external counsel engaged by King & Wood Mallesons to act on behalf of the defendants in this proceeding who have signed a 7 August Undertaking or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin;

(c) Accountants and analysts at Axiom Forensics involved in the preparation of expert evidence as to loss or damage for the purpose of this proceeding, who have also signed a 7 August Undertaking or whose agreement to be bound by the terms of a 7 August Undertaking has been confirmed in writing to Gilbert + Tobin.

(2) This Undertaking not to disclose the information includes disclosure in any way of the contents of the Confidential Documents to any person including to the defendants or to any other person advising or working with the defendants or any party or person other than those described at paragraph (1) above.

(3) I undertake not to make any copies of the Confidential Documents or any part of them or otherwise to make any record of their contents including by way of taking notes, photographs or screenshots, other than to upload into the Data Room any communications which contain the Confidential Documents or any part of them. I undertake to destroy all copies of any such communications as soon as they are uploaded to the Data Room.

(4) I undertake to ensure that, when viewing the Confidential Documents, I do so in circumstances where they cannot be viewed by others (other than those described at paragraph (1) above).

(5) At the conclusion of this proceeding, I will confirm in writing to Gilbert + Tobin, by giving notice in writing to King & Wood Mallesons, I do not have any copies of the Confidential Documents or any part of them, or any communications containing the Confidential Documents or any part of them.

(6) The provision of this Undertaking does not constitute any acknowledgement in relation to the question of whether the Confidential Documents do in fact contain information of a nature that warrants their inspection in this proceeding to be limited. The terms of the Undertaking may be varied by written confirmation from Gilbert + Tobin or by order of the Court.

(7) I undertake only to access the Confidential Documents in accordance with the means set out in the Court’s orders dated 14 September 2018.

Dated: 14 September 2018

ANNEXURE B

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST	S ECI 2014 00146
BETWEEN:
CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff
AND
VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants
AND
CARGILL, INCORPORATED AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Third parties

ORDER

JUDGE:	The Honourable Justice Elliott
DATE MADE:	[] 2018
ORIGINATING PROCESS:	Originating process – RedCrest
HOW OBTAINED:	Defendants’ summons dated 30 August 2018

THE COURT ORDERS THAT:

Defendants’ summons dated 30 August 2018 (Access Summons)

Upon Mr Matthew Michael Weber (“Weber”) giving an undertaking to the court substantially in the form annexed to these orders (“the Undertaking”), Weber shall be permitted to inspect the documents listed in Schedules 1 and 2 in the list of documents dated 22 August 2018 and any further documents discovered or otherwise produced by the Cargill Parties pursuant to the orders made by the Honourable Justice Elliott on 19 July 2018 (“the Confidential Documents”) on the terms set out in paragraphs 2, 3 and 4 below.
The Confidential Documents are to be made available to Weber through a data room hosted by Intralinks Inc (“the Data Room”) on the following basis:
(1)The defendants’ solicitors (“King & Wood Mallesons”) are to act as administrators of the Data Room.
(2)Solicitors of King & Wood Mallesons who have signed confidentiality undertakings in the form annexed to the orders made by the Honourable Justice Elliott on 7 August 2018 (“the Orders”) are released from those undertakings to the extent necessary to load the Confidential Documents into the Data Room.
(3)Solicitors of King & Wood Mallesons, external counsel and independent experts who have signed confidentiality undertakings in the form annexed to the Orders are released from those undertakings to the extent necessary to:
(a)Show the Confidential Documents to Weber at the offices of King & Wood Mallesons.
(b)Disclose the contents of the Confidential Documents to Weber in discussions with him.
(c)Upload into the Data Room any communications which contain the Confidential Documents or any part of them.
(4)The settings of the Data Room are to be set so that documents are watermarked “confidential”, cannot be printed, downloaded, emailed or have screenshots taken of them.
(5)The Cargill Parties will not seek access to data concerning Weber’s activity within the Data Room without prior leave of the court.
While Weber is in Australia, he is also able to inspect the Confidential Documents at the offices of King & Wood Mallesons upon the terms set out in the Undertaking.
Documents containing information which is confidential to one or more third parties are to be made available to Weber in the Data Room subject to the following:
(1)The Cargill Parties will provide to the defendants by [DATE]:
(a)A list identifying the documents which are asserted to include information confidential to one or more third parties.
(b)A statement as to whether any such third party has consented to the disclosure of that information to Mr Weber on the terms of these orders.
(2)If the third party does not consent, the Cargill Parties are to provide by [DATE] a copy of the document with the third party confidential information redacted, and only the redacted version of the document will be uploaded to the Data Room.
Upon Ken Iwata of King & Wood Mallesons’ IT department (“Iwata”) and any other persons from King & Wood Mallesons’ IT department assisting him (“the Assistants”) signing a confidentiality undertaking in the form annexed to the Orders, Iwata and any of the Assistants shall be permitted to inspect the Confidential Documents to the extent necessary:
(1)To upload the Confidential Documents to the Data Room.
(2)In the performance of King & Wood Malleson’s duties as administrator of the Data Room.

Other matters

Costs are reserved.
There is liberty to apply.

DATED: [ ] 2018

SCHEDULE OF PARTIES

BETWEEN
CARGILL AUSTRALIA LIMITED (ACN 004 684 173)	Plaintiff
AND
VITERRA MALT PTY LTD (ACN 096 519 658)	First Defendant
VITERRA OPERATIONS PTY LTD (ACN 007 556 256) (formerly VITERRA OPERATIONS LTD (ACN 007 556 256))	Second Defendant
VITERRA PTY LTD (ACN 084 962 130) (formerly VITERRA LTD (ACN 084 962 130)	Third Defendant
GLENCORE INTERNATIONAL AG (D-U-N-S NBR 48 070 9963)	Fourth Defendant
AND
CARGILL, INCORPORATED	First Third Party
CARGILL MALT ASIA PACIFIC PTY LTD (ACN 004 287 352) (formerly JOE WHITE MALTINGS PTY LTD (ACN 004 287 352))	Second Third Party
GARY HUGHES	Third Party
PETER YOUIL	Fourth Third Party
ROBERT WICKS	Fifth Third Party
DOUGLAS STEWART	Sixth Third Party
SCOTT ARGENT	Seventh Third Party
AND BETWEEN
VITERRA MALT PTY LTD (ACN 096 519 658)	First Plaintiff by Counterclaim
VITERRA OPERATIONS LTD (ACN 007 556 256)	Second Plaintiff by Counterclaim
VITERRA LTD (ACN 084 962 130)	Third Plaintiff by Counterclaim
GLENCORE INTERNATIONAL AG (D-U-N-S NBR 48 070 9963)	Fourth Plaintiff by Counterclaim
AND
CARGILL AUSTRALIA LTD (ACN 004 684 173)	Defendant by Counterclaim

[2018] VSC 750

6 DECEMBER 2018