Charlick Trading Pty Ltd v Australian National Railways Commission
[1997] FCA 1187
•8 Oct 1997
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 78 of 1996
BETWEEN:
CHARLICK TRADING PTY LTD
APPLICANTAND:
AUSTRALIAN NATIONAL RAILWAYS COMMISSION
FIRST RESPONDENTNATIONAL RAIL CORPORATION LIMITED
SECOND RESPONDENT
JUDGE:
MANSFIELD J
DATE:
8 OCTOBER 1997
PLACE:
ADELAIDE
REASONS FOR DECISION
HIS HONOUR: I have before me a motion brought by Twentieth Superpace Nominees Pty Ltd (called in the submissions and in these reasons “SCT”) for an order that the documents produced by the first respondent Australian National Railways Commission (“Australian National”) on 27 August 1997 pursuant to a subpoena dated 20 August 1997, issued to it by the second respondent National Rail Corporation Ltd (“National Rail”) at least so far as certain of those documents are concerned, should not be the subject of access to any other parties. The particular documents in issue presently are those produced in response to pars 3, 9A and 10A of that subpoena.
In making a ruling on that motion, I am guided by the direction which courts commonly have regard to in such matters, that is the direction contained in the decision of the New South Wales Court of Appeal in Waind v Hill and National Employers Mutual General Association Limited [1978] 1 NSWLR 372, in particular in the reasons of Glass JA at 381 where his Honour deals with what he describes as the second stage of the process of subpoenaing and using documents produced under subpoena. That is the stage at which documents produced under subpoena should have an apparent relevance to the proceedings so as to merit an access order.
When this issue was first before me I deferred ruling on the application for access, because at that stage the expert evidence proposed to be relied upon by National Rail was not then filed, and issues as to the apparent relevance, if any, of the material may have depended upon that material. It has now been filed and I have been directed to parts of it.
In my view that material, and in particular Professor Officer's report of 19 September 1997 and Mr Wait's report of 19 September 1997, indicate that it is part of National Rail's case to contest that the relevant market, both the product market and the geographic market, is as confined as the applicant Charlick Trading Pty Ltd (“Charlick Trading”) asserts. It appears from that material that National Rail may argue that the product market may include freight other than international container freight, and that the geographic market may extend beyond the Adelaide-Melbourne corridor both in relation to the capacity to service the Adelaide-Melbourne transfer of freight directly and also in the wider sense that it may be part of the Melbourne-Perth corridor. Accordingly, it seems to me that the documents do have an apparent relevance to the issues before the Court.
That view is fortified by reference to the particular documents in issue. Paragraph 3 of the subpoena, which has led to the production of documents described in a schedule, which is Exhibit LBB2 to the affidavit of Laurel Bernadette Black (“Ms Black”) sworn in this matter on 3 September 1997, seeks production of any final or draft agreement between Australian National and SCT for the provision of motive power, wagons, crew, rail access, terminal facilities or any other rail related service on the Adelaide-Melbourne corridor. Paragraphs 9A and 10A of the subpoena require production of accounts sent by Australian National to SCT and documents evidencing payments made by SCT for rail related services for use on the Adelaide-Melbourne corridor for the period 1 July 1995 to date. It is those particular documents, so described in the subpoena, and set out in the detailed list in the annexure to Ms Black's affidavit to which I have referred, which are the subject of the present motion. The very fact that they have been produced by AN as meeting the description in the subpoena fortifies the conclusion to which I have come.
In reaching that conclusion I should stress that this is not an occasion to make even any tentative findings as to what the facts ultimately proved at trial will be. It is only necessary at this stage to identify the issue as it emerges from that material and the apparent relevance of the documents to that issue. Clearly, as Mr Possingham for SCT pointed out, it is neither appropriate nor correct to assume that all of the facts in either of Professor Officer's or Mr Wait's reports, either of general factual conclusion or of detailed factual observation, are accepted or will be proved at the trial. No doubt some will be contested. I do not decide them. Furthermore, there are a number of matters in Mr Mason's affidavit, sworn on 2 October 1997, which may be of significance if they are sought to be proved either by the applicant or others, as to whether the thesis, upon which at least in part Mr Wait's and Professor Officer's views are expressed, will need to be explored.
Even if the issue of confidentiality were a relevant consideration to determine whether documents are of apparent relevance, I would nevertheless be satisfied that they are of apparent relevance. I am not, however, persuaded that issues as to confidentiality go in any sense to determining the apparent relevance of the documents in question. Whether access to apparently relevant documents should be ordered where those documents are commercially sensitive is a separate question, and one where there are competing considerations to which my attention was drawn. They are identified in the observations of Hill J in Hadid v Lenfest Communication Incorporated (4 November 1996, unreported). I am conscious of those considerations and of the concerns of SCT as expressed in the affidavit material before me. I am not however persuaded that those considerations should result in the documents not being provided at all to National Rail. Rather, in my view, they should be provided but on stringent terms as to the scope of their publication. I have received no submission that the limited access which is presently sought contains any particular threat to the preservation of the confidential nature of the documents, although there is some understandable concern that during the course of the trial somehow the confidential material within the documents might be introduced into evidence when SCT is not represented or present before the Court. I propose to accommodate that concern to some extent, firstly by an order as to confidentiality and limiting the publication of the material to which access is about to be given to counsel and to nominated experts who have filed an appropriate written undertaking in a form satisfactory to Australian National, and in a form which I understand the parties have previously used in the course of these proceedings, but also by an order directing that National Rail give written notice to SCT by its solicitors, being the solicitors who issued on behalf of SCT the notice of motion dated 2 September 1997, three days notice of the proposed calling of any expert who has given an undertaking in accordance with the access order which I am about to make. There remains the prospect that during cross-examination some such material may emerge. That will inevitably emerge through counsel if it is to emerge at all and I expect counsel, who have access to the documents, to be aware of that problem and to raise it if in the course of cross-examination such material might potentially be disclosed. I am confident that counsel will do so and in that way the legitimate concerns of SCT and indeed of Australian National can be accommodated.
I will deal separately with the access which is sought by Charlick Trading.
I accordingly make the following further orders:
That the second respondent National Rail and the applicant Charlick Trading have access to the documents produced by Australian National pursuant to pars 2, 9B and 10B of the subpoena dated 20 August 1997, restricted until further order in the case of National Rail to access to counsel for National Rail and to any expert nominated in writing by National Rail who provides an undertaking in a form acceptable to Australian National to preserve the confidential nature of that material, and in the case of Charlick Trading and to solicitors, Mr Gregory Brown and to Mr Kim Ryder, and to any expert nominated in writing by Charlick Trading to Australian National who provides an undertaking in a form acceptable to Australian National to preserve the confidential nature of that material.
That National Rail and Charlick Trading have access to the documents produced by Australian National pursuant to pars 3, 9A and 10A of the subpoena dated 20 August 1997 restricted until further order to counsel for National Rail and Charlick Trading, and to any expert nominated in writing by either of them who provides to Australian National and to SCT an undertaking in writing in a form acceptable to the first respondent and to SCT to preserve the confidentiality of that material.
That each of National Rail and Charlick Trading give written notice to SCT by its solicitors, Grope Hamilton Brown, Ground Floor, 15 Bentham Street, Adelaide, not less than three days prior to the date upon which it is proposed to call any expert who has given an undertaking in accordance with par 4 of this order, and who has had access to the documents produced by Australian National pursuant to pars 3, 9A or 10A of the said subpoena.
That such material as inspected be not further disclosed by any such person without further order of the Court.
That any party and TNT and SCT have liberty to apply with respect to this order.
[After further submissions, par 2 above was varied by extending access to two nominated solicitors of Charlick Trading, Mr Gregory Brown and Mr Kim Ryder].
I certify that this and the preceding four (4) 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 R D Ross-Smith
Solicitors for the First Respondent: Phillips Fox
Counsel for the Second Respondent: Mr P Gray
Solicitors for the Second Respondent: Deacons Graham & James
Counsel for Twentieth Superpace Nominees Pty Ltd: Mr A V Possingham
Solicitors for Twentieth Superpace Nominees Pty Ltd: William R Wilson & Associates
Date of Hearing: 8 October 1997
Date of Decision: 8 October 1997
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