Charlick Trading Pty Ltd v Australian National Railways Commission

[1997] FCA 1291

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 78 of 1996

BETWEEN:

CHARLICK TRADING PTY LTD
APPLICANT

AND:

AUSTRALIAN NATIONAL RAILWAYS COMMISSION
FIRST RESPONDENT

NATIONAL RAIL CORPORATION LIMITED
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	21 NOVEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:        The second respondent has tendered in evidence Deed of Settlement dated 18 November 1997, between the applicant and the first respondent, Exhibit NRC 74 (“the deed”).  When it was tendered, I made an order restricting its publication to counsel and solicitors for the parties.  That order was intended to operate only for a short time.  I gave liberty to apply with respect to that order.

I am now asked to rule in a more formal setting upon whether that evidence should be restricted in its publication beyond counsel and solicitors for the parties.  The applicant submits that that interim order should remain.

There is no particular provision in the deed which has been identified as containing within it confidential information of any nature whatsoever.  What is said is that, because the parties by cl 8 of the deed have agreed as between themselves to keep its terms confidential except as may be required by the Court in consequence of the settlement of claim, I should therefore

determine that it would prejudice the administration of justice if the deed were to be made available generally.

I am not satisfied that that is so.  As I have said there is nothing in the document which has been identified as in any sense containing confidential information.  I have reviewed its terms.  After the definition clause, it deals with the termination of this action as between the applicant and the first respondent.  That is a public matter, already announced, except the arrangement as to costs.  It then records the termination of the Intermodal Services Agreement of 27 June 1993, which is Exhibit A109 in this proceeding, and upon which the claim by the applicant against the first respondent was based.  It is said that that agreement, either expressly or by terms which should be implied, entitled the applicant to damages and other relief against the first respondent.  It may be that its termination, or the terms of its termination, may be relevant to whether the applicant establishes any and, if so, what damages (at least prospectively) against the second respondent, if it otherwise succeeds in its residual claim against the second respondent.  It will almost inevitably have to be recognised in the judgment that the Intermodal Services Agreement has come to an end by reason of the deed.  The fact that it had come to an end was announced publicly in open Court.  There is no reason peculiar to that clause, so far as I can see, which would make it prejudicial to the administration of justice for that clause to be made public.

Paragraphs 4 and 5 of the deed relate to a lease including arrangements called the Stage 1 Lease and the Stage 2 Lease.  It is a registered instrument.  It is in a form which is referred to in, and attached to, the Intermodal Services Agreement as proposed terms of a lease.  The deed varies the terms of the lease.  As the lease itself is a public document, the terms of its variation should also be public.  I suspect it may become public in any event by registration of the variations to the lease in due course.  Again, there is no reason to keep those variations private.

Other than relatively formal matters relating to general implementation of the document, costs and stamp duty, the governing law of the deed, and its execution, the only other clause of the deed relates to the release of the undertakings given on 26 November 1996.  That matter is already public because that release was announced to the Court, and upon the basis of that announcement, I released the parties from the undertakings which are therein referred to.

Accordingly, not only is there nothing inherently confidential in the deed, but its terms in large measure reflect what is already publicly known or should be publicly known.  It would be somewhat curious, if not inappropriate, for the Court to make the order sought in those circumstances.  Certainly, in my view, they place the scales in favour of its general availability, notwithstanding the express agreement of the parties to keep it confidential.  Such an agreement is, or may be, relevant to the application but in the present circumstances and for the reasons given, it does not lead me to the view that the order sought should be made.

I accordingly lift the order which I previously made under s 50 of the Federal Court of Australia Act 1976, restricting the publication of Exhibit NRC 74.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Date:

Counsel for the Applicant:  Mr R C White

Solicitors for the Applicant:  O’Loughlins

Counsel for the First Respondent:  Mr P Zappia

Solicitors for the First Respondent:  Phillips Fox

Counsel for the Second Respondent:  Mr R A Conti

Solicitors for the Second Respondent:  Deacons Graham & James

Date of Hearing:  21 November 1997

Date of Decision:  21 November 1997