Charlick Trading Pty Ltd v Australian National Railways Commission

[1997] FCA 1184

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:	4 SEPTEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:   The second respondent gave to the first respondent a subpoena to produce ten categories of documents described in the schedule to the subpoena dated 20 August 1997.  That subpoena lead to the first respondent producing to the Court a number of the documents which were required to be produced pursuant to the subpoena or at least sufficiently to the satisfaction of the second respondent.  There is presently no issue as to production in accordance with the subpoena.  The documents so produced are listed in the schedule, which is Exhibit LBB2 to the affidavit of Laurel Bernadette Black sworn on 3 September 1997.

I note that issues as to the documents specified in pars 5 and 6 of the subpoena have not yet been resolved and I propose to adjourn the subpoena to that extent with liberty to apply.  I note also that although issues with respect to certain of the documents specified in par 9 and par 10 of the subpoena have this morning been resolved, that is resolved subject to the reservations expressed earlier and subject to the liberty to apply in respect of those paragraphs also expressed earlier.

Paragraphs 1 to 3 and 9 to 10 of the subpoena require production by the first respondent of documents which relate to other entities as well as the first respondent.  Those other entities, namely TNT Australia Pty Ltd, Patrick Stevedores Holdings Pty Ltd and Twentieth Superpace Nominees Pty Ltd has each, by motion, applied for orders to set aside the subpoenas or for orders prohibiting or limiting access to the documents produced pursuant to the subpoena, so far as it relates to their particular affairs.

By the time those motions came to be called on, the documents had been produced by the first respondent so that effectively the submission on each of the notices of motion referred to was limited to seeking orders that the documents so produced by the first respondent should not be made available to the second respondent or, I assume, the applicant for inspection at all.  Those subpoenas, in their present context, therefore give rise to what is commonly regarded as the second stage in the procedure of having documents brought into Court and discussed in Waind v National Employers Mutual General Assurance Limited (1978) 1 NSWLR 372. In the judgment of Glass JA, with whom the President of the Court of Appeal, Moffitt P and Hutley JA agreed (at 384) his Honour recognised that in making an order or otherwise for access for production of documents produced under subpoena, the question in the exercise of the discretion whether to permit inspection, is whether the documents have an apparent relevance to the issues. In that regard, in making such a decision it is appropriate, as his Honour indicated at 384, to have regard to what is required for the purposes of doing justice in the particular case but also to the requirements of justice in the sense that the rights of a stranger to the litigation to have private and confidential matters be preserved.

I have considered the various submissions which have been put with a view to deciding whether I am satisfied at present that the documents produced have an apparent relevance to the issues between the parties in this proceeding.  In the case of the documents produced under pars 1, 9(c) and 10(c) I am satisfied that the documents produced do have an apparent relevance to the proceeding for this reason.  On the material before me Patrick Stevedores Holdings Pty Ltd, since April 1997, has operated a train between Adelaide and Melbourne, principally for the purpose of moving international shipping containers between Adelaide and Melbourne.  That reflects, to a significant extent, the market about which complaint is made by the applicant in these proceedings.  In my view, circumstances which go to show how Patrick Stevedores Holdings Pty Ltd got into that market, and how it is participating in it, are relevant considerations or may be relevant considerations to the ease of access to the market which the applicant alleges in its statement of claim, and so to the question of whether the second respondent does have a substantial degree of power in that market and is or is capable of exercising that power in a way which is the subject of attack in the proceedings.

I am mindful there is an issue as to confidentiality of the documents, which I must balance.  In the case of those documents, as is commonly the case, they are documents of a competitor in the same or a similar market or of a competitor or a potential competitor in a different market.  I think the requirements of justice do oblige me to direct that those documents be made available for inspection.  The affidavit asserting confidentiality does not point to any particular transaction or transactions which are either ongoing or imminent outside the current proceedings and which involve the legal representatives of the second respondent and of Patrick Stevedores Holdings Pty Ltd.  Accordingly, I propose to authorise access to the second respondent, and subject to any particular objection which is taken by counsel for Patrick Stevedores Holdings Pty Ltd to the applicant, limited to the solicitors and counsel for those respective parties and to a nominated expert or experts who is to provide an undertaking as to confidentiality.  In other words, the present arrangements which have been in place with respect to confidential documents is, in my view, an appropriate recognition of the confidential nature of the documents in the particular circumstances.  If there is any issue as to that, I will give the parties, including Patrick Stevedores Holdings Pty Ltd liberty to apply to resolve it.

In the case of the other documents concerning TNT Australia Pty Ltd being the documents referred to in pars 2, 9(b) and 10(b) and Twentieth Superpace Nominees Pty Ltd (which is called in the subpoena SCT) and being the documents referred to in pars 3, 9A and 10A of the subpoena, I am not presently satisfied that those documents have an apparent relevance to the issues in the proceedings.

It is possible that they may do so.  At present the market alleged, which has been identified as a market for either rail, or rail and road, transport between Adelaide and Melbourne for international shipping containers, the second respondent has denied that market but has not otherwise set up a market.  The second respondent's counsel has indicated that, at present the expert proposing to be lead in evidence by the second respondent has not yet filed and served his proposed evidence.  The time within which that is required to have been done has not yet expired.

It seems to me that it is appropriate to defer a ruling on apparent relevance until that material has been filed and served and the parties have had an opportunity to address me more specifically in relation to what is to be asserted by the applicant and what is to be the subject of response by the second respondent before I am able to determine whether those documents have an apparent relevance to issues between the parties.  If, in the light of that material there is acquiescence between counsel that those documents have an apparent relevance to the issues between the parties, then by consent I will make an order for access to the documents.

In that event, in the case of the documents of Twentieth Superpace Nominees Pty Ltd, for the same reasons as I expressed in the case of the Patrick Stevedores Holdings Pty Ltd documents, it seems to be the normal confidentiality arrangements which exist between the parties should be sufficient.

In the case of the TNT Australia Pty Ltd documents, there is apparently either some actual or potential on-going issues between TNT Australia Pty Ltd and the second respondent which are remote from this proceeding, but which TNT Australia Pty Ltd is concerned may involve, if the documents are made available to the second respondent's legal advisers, those legal advisers somehow becoming irretrievably infected with a knowledge which they could not disregard in dealings in the other matter involving TNT Australia Pty Ltd and which would be unfair both to TNT Australia Pty Ltd and, in those circumstances, I am sure the solicitors would accept to themselves.

Whether that is or is not a real problem, I do not presently decide.  It is raised as an issue.  I do not think the affidavit material presently before me enables me to resolve it.  I simply note the issue.  If there is agreement at some early point that the documents do have an apparent relevance to the issues between the parties in the case of the TNT Australia Pty Ltd documents then until TNT Australia Pty Ltd has had another opportunity of presenting material to me to limit the scope of any disclosure of that material or, on the other hand, the second respondent has had an opportunity of presenting to me material to warrant the normal rule as to the scope of access of the material produced on subpoena, I indicate that it would be appropriate simply that that material be available to counsel and to a nominated expert or experts upon appropriate undertakings being given.  I am not by that to be taken as indicating one way or another as to what is or is not appropriate.  That is simply a holding position until TNT Australia Pty Ltd has had an opportunity to adduce such further material as may be warranted on the topic.

Accordingly, the orders that I make at present are:

1. With respect to the documents produced under the subpoena dated 20 August 1997, the second respondent and the applicant may have access to the documents produced pursuant to pars 1, 9(c) and 10(c) of the subpoena upon the usual confidentiality terms being implemented as between the parties;

1. With respect to the balance of the documents in issue, that is the documents produced pursuant to pars 2, 3, 9(a), 9(b), 10(a) and 10(b) of the subpoena no order for access at present, and the application for access to that material is stood over to a time to be fixed with liberty to apply, to the intent that any application to have access to that material further considered by the Court will be in the light of the experts report or reports as to the nature of the market to be filed and served by the second respondent; and

1. Costs of the motion be reserved for further consideration.

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 Patrick Stevedores Holdings Pty Ltd  Mr D A Trim QC
and TNT Australia Pty Ltd:  with him
  Mr P A Campbell

Solicitors for Patrick Stevedores Holdings Pty Ltd  Kelly & Co
and TNT Australia Pty Ltd:

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:  4 September 1997

Date of Decision:  4 September 1997