Cargill Australia Ltd v Viterra Malt Pty Ltd (No 26)
[2021] VSC 242
•11 MAY 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE |
S ECI 2014 00146
| 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 |
DATE OF HEARING: | 6 MAY 2021 |
DATE OF JUDGMENT: | 11 MAY 2021 |
CASE MAY BE CITED AS: | CARGILL AUSTRALIA LTD v VITERRA MALT PTY LTD (No 26) |
| MEDIUM NEUTRAL CITATION: | [2021] VSC 242 |
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EVIDENCE – Confidentiality – Existing confidentiality regime – Application for confidentiality order – Figures relating to sale of business the subject of proceeding – Previous orders set to expire on handing down judgment – Whether Open Courts Act 2013 (Vic) applies - Principle of open justice - Orders sought would require reasons for decision be published in redacted form – Whether circumstances exist to justify confidentiality – Whether publication of information would create a real and substantial risk to the administration of justice – Application dismissed – Open Courts Act, ss 3, 4, 7, 17, 18.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff and the 1st and 2nd third parties | Mr P Solomon QC Mr C Parkinson | Gilbert + Tobin |
| For the defendants | Mr S Senathirajah QC Mr S Parmenter QC Mr O Wolahan | Johnson Winter & Slattery |
| For the 3rd third party | Ms G Wilson (solicitor) | Maddocks |
| For the 4th, 5th and 7th third parties | Ms N Younan (solicitor) | Gilchrist Connell |
| For the 6th third party | Ms K Brandon (solicitor) | HWL Ebsworth |
| For the non-party applicant | Mr A Purton | Corrs Chambers Westgarth |
HIS HONOUR:
IntroductionA.
This application was made by Copagest NV (“Copagest”) in the context of a proceeding where the trial has been held and judgment is reserved. Copagest is a subsidiary of Axéréal SCA (“Axéréal”), a French agricultural cooperative group that collects and sells grain and oilseed internationally. Copagest was not a party to the proceeding, but brings this application with leave on the basis that it contended that its interests would be adversely affected if previous orders made were allowed to lapse.
Copagest’s application seeks that certain information be kept confidential, and additionally seeks to extend the operation of orders previously made regarding the redaction of certain confidential information from the transcript of the trial. The relevant sections of the transcript are currently set to remain confidential until judgment is delivered, but not beyond then.
When making the previous orders, it was observed that there was no need, at that time, to consider what effect the orders being made would have on the ability of the court to publish reasons which disclosed the basis on which any judgment was delivered. However, it was also noted that it was “possible this issue may arise in the future, but that is for another day”.[1]
BackgroundB.
[1]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 627 [85].
The key facts of the proceeding have been provided in sufficient detail elsewhere,[2] and the facts particular to the information currently being considered have been set out in the previous ruling by which certain parts of the transcript were ordered to be redacted.[3] It is sufficient then to provide a brief overview of the relevant facts.
[2]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [6]–[9].
[3]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 613- 614 [10]-[16].
On 4 August 2013, the plaintiff, Cargill Australia Ltd (“Cargill Australia”), agreed to purchase the malting company Joe White Malting Pty Ltd (“Joe White”) and some assets used in the business Joe White operated from the first to third defendants.[4] Each of these defendants was part of a corporate group owned by the fourth defendant, Glencore International AG. The purchase was completed on 31 October 2013 (“the Acquisition”). Cargill Australia brought this proceeding against the first to fourth defendants (“the Viterra Parties”), claiming a failure to disclose material information during the sale process which it alleged amounted to, amongst other things, breaches of contract and contraventions of section 18 of the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
[4]Being Viterra Malt Pty Ltd, Viterra Operations Pty Ltd and Viterra Pty Ltd (formerly Viterra Ltd).
The trial commenced on 18 June 2018. Early in the trial, a witness under cross-examination disclosed that the first third party, Cargill, Inc,[5] was contemplating a sale of Joe White. Naturally, Cargill, Inc considered information relating to the possible sale, including details about Joe White’s value or any possible sale price, was confidential. After a ruling that documents relating to the possible sale of Joe White were relevant to issues in the proceeding,[6] an appropriate confidentiality regime was put in place so that the Viterra Parties and other parties to the proceeding could have access to the relevant information. In due course, access to the documents in question were given to the parties on a confidential basis.[7]
[5]Cargill, Inc is Cargill Australia’s ultimate parent company.
[6]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [50]-[55].
[7]Including documents subsequently created as the sale process progressed.
On 23 April 2019, while the trial was ongoing, Cargill, Inc, entered into an agreement with Copagest (“the Sale Agreement”). Under the Sale Agreement, Cargill, Inc agreed to sell the entirety of its global malt business (“Cargill’s Malt Business”), including Joe White. Further, both Copagest and Cargill, Inc agreed to keep certain information confidential for a period of 10 years. Not surprisingly, these obligations as to confidentiality did not prevent disclosure required by law. Completion occurred on 31 October 2019 (“the Sale”).
The parties were not agreed on all aspects of the confidentiality regime. As a result, a number of orders and decisions were made concerning the confidentiality regime.[8]
[8]Details of the confidentiality regime and the relevant background are set out in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 17) [2018] VSC 750, [26]-[61], [279]-[285].
On the question of any loss Cargill Australia was alleged to have suffered, the Viterra Parties relied on information relating to the Sale, namely:
(1)The total price paid for Cargill’s Malt Business (“the Sale Price”).
(2)The amounts of the Sale Price allocated to the various regional components of Cargill’s Malt Business.
(3)The earnings before interest, tax, depreciation and amortisation multiple by which the Sale Price was calculated (“EBITDA Multiple”).
(Together, “the Sale Figures”.)
Broadly speaking, the Viterra Parties relied on the Sale Figures in 2 ways. Primarily, the Viterra Parties submitted the Sale Figures were relevant to the calculation of loss and damage alleged to have been suffered by Cargill Australia as a result of the Acquisition. Additionally, the Viterra Parties submitted the Sale Figures were relevant to the issues of causation. The parties to the proceeding agreed that the Sale Figures should continue to be treated as confidential for the remainder of the trial, including after the Sale, as they fell within information that Copagest and Cargill, Inc had agreed to keep confidential under the Sale Agreement. Repeatedly throughout the trial the Sale Figures were referred to, but the parties agreed this was to be done in such a manner so as to maintain the confidentiality of the relevant details.
The decision in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23)[9] (“Ruling 23”) was made in response to an application by Cargill Australia following a number of inadvertent disclosures of the Sale Figures in open court. After each such disclosure, an interim order was made requiring the redaction of the relevant parts of the transcript. The application to which Ruling 23 responded sought to formalise and extend these interim orders. Upon the application being granted, it was ordered that the relevant parts of the transcript remain redacted until 30 January 2020. By consent of the parties, the date for the expiry of these orders was extended on 2 December 2019 to the date of publication of the principal judgment yet to be delivered.
[9](2019) 58 VR 611.
The current application brought by Copagest seeks orders that the Sale Figures, as well as clause 2 and schedule 1 of the Sale Agreement, be kept confidential. Clause 2 includes the total of the Sale Price, and schedule 1 provides various details including the allocations of the Sale Price to different regions in which Cargill’s Malt Business operated. Effectively, if granted, part of the relief sought by Copagest would result in an order that those parts of the transcript redacted pursuant to Ruling 23 remain redacted. Unlike the orders made pursuant to Ruling 23, the orders sought by Copagest are not limited by time.
Cargill Australia and the first to seventh third parties neither consented to or opposed the application brought by Copagest. The Viterra Parties opposed the application.
ApproachC.
Copagest and the Viterra Parties agreed the appropriate method for considering orders of the kind sought by Copagest, including the applicability of the Open Courts Act 2013 (Vic), was set out in Ruling 23:[10]
[10]Ibid, 617 [30]-[33].
The first question is a threshold question: Does the Open Courts Act apply to the order sought? (“Question 1”). In simple terms, the answer to Question 1 will depend on whether the order sought may be properly characterised as a “suppression order” as defined in the Open Courts Act.
The second question is: What is the correct approach to the making of the order sought? (“Question 2”). The answer to this question depends on the answer to Question 1. If the answer to Question 1 is “yes”, then the statutory presumption in favour of disclosure and stipulations mandated by the Open Courts Act will apply, including the “general provisions for suppression orders” contained in Part 2 of the Open Courts Act. Alternatively, if the answer to Question 1 is “no”, then the general common law principle of open justice in the overall context of the administration of justice will apply, without the imposition of the requirements of the Open Courts Act.
The third question is whether, in light of the applicable approach and legal principles, the order sought should be made? (“Question 3”).
(Footnotes omitted.)
Question 1: Does the Open Courts Act apply?D.
BackgroundD.1
Question 1 requires a 2 stage inquiry.[11] The first stage requires determination of whether the proposed order is a type of order to which the Open Courts Act expressly applies or expressly does not apply (“the First Stage”).[12] If the answer in the First Stage is “no”, the second stage requires consideration of whether the order is more akin, in its substance and practical effect, to an order to which the Open Courts Act expressly applies or to an order to which the Open Courts Act expressly does not apply (“the Second Stage”).[13]
[11]Ibid, 617-619 [34]-[43].
[12]Ibid, 617 [35]-[36].
[13]Ibid, 617-618 [37].
Among the orders to which the Open Courts Act expressly applies, the only category of relevance here is the “suppression order”. Four types of orders are included within the definition of suppression orders in the Open Courts Act.[14] The first is a “proceeding suppression order” made by a court or tribunal under section 17 of the Open Courts Act, which operates:
to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
[14]Section 3.
The other category relevant to this application is a suppression order made in the exercise of the Supreme Court’s inherent jurisdiction, which has the effect of prohibiting or restraining the publication or disclosure of information in connection with a proceeding, whether or not the information was derived from the proceeding.
The common characteristic of suppression orders is that they restrain, restrict or prohibit publication or other disclosure of information, and thus limit the dissemination or provision of information to the public or to a section of the public.[15] Such orders do not interfere with primary court processes from which information is derived, but rather restrict the dissemination, by intermediaries, to the public or to a section of the public of the information derived from these primary court processes.[16]
[15]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 618 [41].
[16]Ibid.
To assist the parties identify the real issues for this application, they were informed by the court that the Sale Figures, together with their relevance to the quantum of any loss claimed by Cargill Australia, will be addressed in the reasons for judgment.[17]
SubmissionsD.2
[17]As the parties have been informed already, this in no way gives rise to any inference as to the outcome on questions of liability as there are many question of fact that the court needs to determine on the question of loss regardless of the outcome on liability.
Copagest submitted that the Open Courts Act does not apply to the orders sought.
In respect of the First Stage, Copagest submitted that the proposed orders do not seek to restrict, restrain or prohibit the publication or disclosure of any information to the public or a section of the public. Copagest instead characterised the orders sought as maintaining the confidentiality in a discrete category of information that has been the subject of confidentiality (on a time-limited basis) throughout the proceeding. As such, Copagest submitted it was not seeking a suppression order.
In respect of the Second Stage, Copagest submitted that the same reasoning which was applied to the order considered in Ruling 23 should apply to the proposed orders. In Ruling 23, it was concluded that the order to redact sections of the transcript was more akin to a number of the orders to which the Open Courts Act did not apply,[18] rather than to suppression orders.[19] More particularly, the orders granted by Ruling 23 were found to be an extension to the confidentiality regime which had been court sanctioned, and to which the Open Courts Act did not apply.[20] The redactions to the transcript ordered pursuant to Ruling 23 were only necessary because the confidentiality regime previously ordered had been inadvertently breached.[21]
[18]See s 7.
[19]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 620-621 [53].
[20]Ibid.
[21]Ibid, 621 [54].
Copagest argued that the orders it proposed were concerned to ensure the continuous nature of the confidentiality regime previously agreed and the subject of orders of the court, and that it did not seek orders affecting the public nature of the trial or the ability of media to report on the proceeding. Copagest also contended the orders proposed could be characterised as similar in nature to an order requiring a person be referred to by a pseudonym,[22] except that rather than concealing a person’s identity the order would conceal the Sale Figures.
[22]To which the Open Courts Act would expressly not apply, under s 7.
Copagest also addressed the foreshadowed position that the Sale Figures will be included in the principal judgment when it is published. It submitted that, should it be necessary to refer to the information the subject of this application in the judgment, it could be published in a redacted form, with the sections referring to the Sale Figures confined to a confidential annexure accessible only to the parties, to their representatives and to judicial officers.[23] In making this submission, Copagest noted that a similar approach was recently taken by McDonald J in Fonterra Brands (Australia) Pty Ltd v Bega Cheese Pty Ltd.[24]
[23]Copagest also submitted it was not possible to fully assess the significance of the Sale Figures to the principal judgment as it is yet to be delivered. When Copagest’s counsel was asked whether it was appropriate to defer this application until the principal judgment had been delivered, the court was informed that Copagest wanted to proceed with the application presently.
[24][2021] VSC 75, [250].
In opposition, the Viterra Parties submitted that the first order sought by Copagest, that the Sale Figures be kept confidential, satisfies the definition of a suppression order. This submission was made on the basis that the order sought would affect what could be included or referred to openly in the reasons for judgment.
The answer to Question 1D.3
As the Sale Figures are to form part of the principal judgment, the Viterra Parties’ submissions must be accepted. Upon delivery of the principal judgment, if the orders sought by Copagest were made they would have the effect of prohibiting or restricting the publication or other disclosure of information in relation to the proceeding.
To elaborate, given the restrictions which would need to be placed on the publication of parts of the judgment should the orders sought by Copagest be granted, those orders fall within the definition of “proceeding suppression order” in section 17 of the Open Courts Act and the further meaning of suppression order in section 3 referred to above.[25] Accordingly, the Open Courts Act expressly applies to the orders sought.
[25]See par 17 above.
The orders proposed by Copagest are clearly of a different character to an order requiring the use of a pseudonym. A person’s name typically will have no relevance to the reasoning given in a judgment. Further, in using a pseudonym, there is no need to keep any part of the reasoning itself confidential. Thus, the reasoning in a judgment will remain entirely intelligible to the public despite the name of the person or persons in question not being disclosed.
In contrast, the Sale Figures formed part of the basis on which the Viterra Parties put their case. They submitted the loss alleged to have been suffered by Cargill Australia either was not actually suffered because of the Sale and the Sale Price received, or alternatively that it was by reference to the Sale Figures that any loss should be assessed.[26] Therefore, the Sale Figures will need to be considered and will necessarily form part of the court’s reasoning. Although the reasons for judgment are yet to be published, it is evident that keeping the Sale Figures confidential would compromise the ability of the court to explain its reasons for determining whether any loss might have been suffered (or alternatively, the amount of any loss) and, accordingly the ability of the public to understand the reasoning in the judgment.
[26]Reliance was placed upon each of the 3 aspects of the Sale Figures.
Thus, Question 1 must be answered “yes”.
Question 2: What is the correct approach?E.
As the answer to Question 1 is yes, the statutory presumption in favour of disclosure and stipulations mandated by the Open Courts Act must apply. So must the “general provisions for suppression orders” contained in Part 2 of the Open Courts Act.[27]
[27]Part 2 contains provisions concerning the making of (s 14), scope of (s 13), and duration of (s 12) suppression orders. Part 2 also contains procedural requirements related to notice (s 10) and notification (s 11).
Section 4 of the Open Courts Act states:
Principle of open justice prevails unless circumstances require displacement
(1) A court or tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.
(2) A court or tribunal is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
Section 18 of the Open Courts Act relevantly provides:
Grounds for proceeding suppression order
(1) A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a) the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
…
Considering section 18(1)(a) in AB v CD,[28] the Court of Appeal noted that the use of the word “necessary” imposes “a high standard of satisfaction”, and “is not satisfied by merely establishing that it would be reasonable to make an order for one of the purposes identified in the Act”.[29] The onus is on the applicant to persuade the court that a suppression order is necessary.[30]
[28](2019) 279 A Crim R 357 (Ferguson CJ, Beach and McLeish JJA).
[29]Ibid, 368-369 [68].
[30]Director of Public Prosecutions (Cth) v Brady (2015) 252 A Crim R 50, 60 [59] (Hollingworth J).
As acknowledged by the Court of Appeal in Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police,[31] general law principles are applicable to the determination of whether a suppression order is necessary for the proper administration of justice.[32] These principles were set out in detail in Ruling 23.[33] It is sufficient here to provide a brief summary.
[31][2019] VSCA 154 (Whelan, Beach and Weinberg JJA).
[32]Ibid, [102]–[106]. See also Napier v Treasury Wine Estates Ltd [2020] VSC 765, [26] (Nichols J).
[33](2019) 58 VR 611, 621-625 [59]-[73].
The principle of open justice requires that court proceedings occur in open court, and that all evidence in court proceedings be available and accessible to the public.[34] This principle is important, and has been recognised as such in the Open Courts Act, because it allows “public and professional scrutiny” of court proceedings.[35] Such scrutiny assists to ensure courts are accountable to the public, guards against the possible misuse of judicial power, and bolsters public confidence in the courts.[36]
[34]Botsman v Bolitho(No 1) (2019) 57 VR 68, 120 [244] (Tate, Whelan and Niall JJA). See also Hogan v Hinch (2011) 243 CLR 506, 530–532 [20]–[22] (French CJ).
[35]Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[36]Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118, [121] (Marshall, Rares and Flick JJ); Russell v Russell (1976) 134 CLR 495, 520.6 (Gibbs J).
The principle of open justice is not an end in itself, but serves to aid a more fundamental principle, the administration of justice.[37] As a result, in certain exceptional circumstances where strict adherence to the principle of open justice would detract from the administration of justice, the principle of open justice must give way. Any departure from the principle of open justice must be justified by the parties seeking such a departure,[38] and must be limited in scope and time so as to infringe no further on the principle of open justice that is strictly required for the administration of justice.[39]
[37]See R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227, 235D-E (Donaldson MR, with whom Griffiths and Slade LJJ agreed); Scott v Scott [1913] AC 417, 437.6 (Viscount Haldane LC).
[38]See, for example, Hogan v Australian Crime Commission (2010) 240 CLR 651, 667 [43] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); ABC v D1; Ex parte The Herald & Weekly Times Ltd [2007] VSC 480, [62], [65], [67]–[68], [71] (J Forrest J).
[39]Botsman v Bolitho (2019) 57 VR 68, 120 [245] (Tate, Whelan and Niall JJA); Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663, [437] (Osborn JA).
The preservation of commercial confidentiality may, in certain circumstances, be necessary for the administration of justice and so permit a departure from the principle of open justice. The following principles apply when determining an application founded on considerations of commercial confidentiality:[40]
[40]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 623-625 [67]-[73].
(1)The court will only make a confidentiality order when confidentiality is necessary for the administration of justice.[41]
[41]Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [106] (Whelan, Beach and Weinberg JJA); AA v BB (2013) 296 ALR 353, 388 [181] (Bell J).
(2)It is not enough for an applicant to merely assert the confidentiality of the information sought to be protected; the applicant must identify a basis for the court to maintain the confidentiality.[42]
[42]Hogan v Australian Crime Commission (2010) 240 CLR 651, 666 [38] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ), citing, with approval, Hogan v Australian Crime Commission (2009) 177 FCR 205, 220–221 [42] (Jessup J).
(3)The protection of commercially sensitive information may be necessary to the administration of justice, which requires that controversies between parties be resolved without a party, or a non-party, suffering severe and collateral commercial harm.[43]
[43]Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [13]–[14] (Greenwood J); Qantas Airways Ltd v Rolls-Royce PLC [2010] FCA 1481, [21] (Rares J).
(4)It is for the applicant to establish that each piece of commercial information in respect of which a confidentiality order is sought has a confidential character warranting the protection of a court order.[44]
(5)The strength of an asserted need for confidentiality will vary according to context, including the nature of the proceeding, the nature of the information sought to be protected, the likelihood and severity of collateral damage if the information were not protected, and the extent of the interference with the principle of open justice required to protect the information.[45]
(6)It is necessary to consider what effect, if any, the making of a confidentiality order may have on the ability of the court to provide cogent reasons for its judgment in a proceeding.[46]
Question 3: Should the orders be made?F.
The parties’ submissionsF.1
[44]Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326, [8] (Jacobson J); ICAP Australia v Forrest Moebes [2010] NSWSC 738, [8] (Ball J) and the authorities there cited.
[45]See, for example, Re Hogan; ex parte West Australian Newspapers Ltd (2009) 41 WAR 288, 296–297 [34] (McLure P, with whom Owen and Miller JJA agreed), 299 [50]–[51] (Owen JA, with whom Miller JA agreed); Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326 [8].
[46]Wainohu v New South Wales (2011) 243 CLR 181, 215 [58] (French CJ and Kiefel J).
Copagest submitted that the circumstances of the current case make it necessary to override the principle of open justice by making the orders sought. Copagest’s submissions were supported by the affidavit of Yvan Schaepman (“Schaepman”), a director of Copagest and the chief executive officer of Axéréal. Schaepman gave evidence that:
Copagest continues to consider that the Sale Figures, and the parts of [the Sale Agreement] which refer to the Sale Figures, are highly sensitive. In particular, I am concerned that disclosure of the information will allow Copagest’s European competitors (as well as their suppliers and clients) to assess the financial stability of Axéréal, Copagest, and [Copagest’s subsidiary] Boortmalt, as they will be able to assess the burden of debt borne by these entities. They will also be able to assess how Axéréal values a business that it may wish to acquire. This will give Copagest’s European competitors (and their suppliers and clients) a competitive advantage … Copagest does not have access to similar types of information about its competitors.
Additional circumstances identified in Copagest’s submissions included that:
(1)Copagest and its related companies were privately owned and not subject to any legal or regulatory requirements to disclose details of the purchase of Cargill’s Malt Business.
(2)The competitive advantage provided to Copagest’s trade rivals would not be diminished by the fact that completion of the purchase of Cargill’s Malt Business had already been achieved.
(3)Without a confidentiality order, Copagest’s trade rivals would benefit from the outcome in the proceeding without having incurred any cost or inconvenience.
(4)As a non-party, Copagest has no interest in the outcome, but still risks information it considers confidential becoming publicly available.
In support of its submissions, Copagest referred to the decision of Guy v Crown Melbourne Limited (No 2),[47] where Mortimer J found certain confidentiality orders to be appropriate on the basis that the documents sought to be protected by the orders were documents in which the commercial interests of the parties might have been threatened if the documents became publicly available.[48] Her Honour found it was inappropriate for a proceeding to “become a vehicle for advantaging or prejudicing trade rivals”.[49] However, her Honour was able to give reasons without expressly referring to the confidential information so that she was not required to published her reasons in redacted form or with a confidential annexure.[50]
[47][2018] FCA 36.
[48]Ibid, [250]. See also the authorities referred to at [263].
[49]Ibid, citing Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [23] (Rares J).
[50]For completeness, not all documents over which confidentiality was sought to be maintained were the subject of orders for confidentiality: see, for example, [264]-[267].
The Viterra Parties submitted that there were significant deficiencies with the justification for the proposed orders put forward by Copagest. They noted that the Sale Agreement was entered into in a context where this proceeding was already on foot.[51] Responding to the risk of harm identified by Copagest, the Viterra Parties submitted that it was not satisfactorily explained how the information sought to be protected would enable Copagest’s trade rivals to assess the financial stability or burden of debt of Copagest or its related entities. The Viterra Parties also submitted that the court could not be satisfied of the fact by a statement as general as Copagest’s statement that “Copagest does not have access to similar types of information about its trade rivals”.
[51]Copagest’s counsel accepted that Copagest was aware of this at the time of its dealings with Cargill, Inc in relation to the Sale.
The Viterra Parties submitted that to the extent the information sought to be protected informs any award of damages, or anything otherwise said in the court’s reasons relevant to damages, knowledge of that content may be necessary to fully comprehend the court’s reasons for judgment. They submitted that the orders sought would likely impair proper consideration of the reasons for judgment, and would impact on the Viterra Parties’ reporting requirements.
Analysis F.2
Copagest was correct to point out that, in Fonterra Brands (Australia) Pty Ltd v Bega Cheese Pty Ltd,[52] the judgment made available to the public did not include the figures showing the plaintiff’s spending on various forms of brand advertising and promotion over a number of years; and that these figures were only disclosed to the parties in a confidential annexure. In that case, McDonald J did not find it necessary to include reasons in his judgment for this approach no doubt because of what had already been decided in that proceeding. When considering the confidentiality of this and other information in an earlier ruling, Daly AsJ decided to create different regimes of confidentiality depending on the nature of the documents in question.[53] Her Honour found that the plaintiff and defendant were potential trade rivals,[54] and that:[55]
[I]nformation concerning trade spend in relation to [the plaintiff’s] products… is directly relevant to the issues in the proceeding, and also very commercially sensitive to [the plaintiff], and possibly third parties…
Further, her Honour distinguished between current marketing plans and current new product development plans, observing that plans for new product development were likely to be substantially more commercially sensitive that marketing plans for existing product.[56]
[52][2021] VSC 75.
[53]Fonterra Brands (Australia) Pty Ltd v Bega Cheese Pty Ltd [2018] VSC 471, [24]-[25].
[54]Ibid, [26(c)].
[55]Ibid, [27].
[56]Ibid, [27(g)].
For the reasons that follow, the evidence relied on by Copagest does not establish that the Sale Figures are “very commercially sensitive”. Equally, the court cannot be satisfied on the evidence that Copagest would suffer severe commercial harm if the Sale Figures were made public. Accordingly, the matters raised are insufficient to demonstrate that the administration of justice requires the making of the proposed orders.
In relation to the probative value of the relevant evidence and the weight it should be given,[57] a number of concessions were properly made by Copagest’s counsel. It was accepted that the second sentence in the passage set out was vague. In relation to the various references to Copagest’s competitors, it was acknowledged that the competitors were not identified and the evidence could have been put more precisely. Also with respect to the third sentence, Copagest’s counsel accepted the Viterra Parties’ submission that it amounted to an assertion without a basis as to how the assessment referred to was said to be able to occur.
[57]See par 39 above.
As to the substance of the evidence, Schaepman’s affidavit expressed the view, but did not explain how or why, access to the Sale Figures would allow Copagest’s European competitors to assess the financial stability of, and burden of debt borne by, Copagest and its related parties. Counsel for Copagest accepted that nothing in the Sale Figures indicated how the purchase had been funded by Copagest, and that without something more the level of debt borne by Copagest and its related parties would not be apparent. It was also not clear from Schaepman’s affidavit how Copagest’s European competitors would be able to use the Sale Figures to assess how Axéréal values a business that it wishes to acquire. Counsel for Copagest accepted that Schaepman’s evidence on this point amounted to an assertion with no explanation and no evidence as to how the identified risk to Axéréal could occur.
In short, publication of no more than the Sale Price, how that was allocated for various regions and the EBITDA Multiple used in relation to this particular transaction,[58] would not give rise to the reader having knowledge of, or even a basis to sensibly estimate, any of the matters referred to by Schaepman.
[58]It is trite that there are many factors that can affect how an appropriate EBITDA Multiple might be arrived at.
Given the deficiencies identified, little weight can be given to Schaepman’s evidence as to the consequences of disclosure, which evidence provided the entirety of the basis for Copagest’s application.
ConclusionG.
Ordinarily, the proper administration of justice requires publication of the judgment in a complete form, without the concealment of material relating to a matter that it was submitted at trial was material to the outcome of the proceeding.[59] Despite it not being a party to the proceeding, nothing put forward by Copagest is sufficient to interfere with publication of the Sale Figures when the principal judgment is delivered in circumstances where the Viterra Parties relied on the relevant evidence as a material part of their defence.[60]
[59]The Cargill Parties submitted the evidence was irrelevant, but these issues are matters for the principal judgment.
[60]In light of this, it is unnecessary to consider the applicability of the time limits imposed by the Open Courts Act: see s 12.
For completeness, if the conclusion reached in respect of Question 1 had been “no”, and the Open Courts Act did not apply to the proposed orders, the same principles identified would be applicable to consideration of the proposed orders under the general law.[61] The analysis in section D.3 would thus equally apply if the Open Courts Act did not apply to the proposed orders.
[61]See par 35 above.
Accordingly, the application must be dismissed.
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