Cockburn Cement Ltd v Minister for Environment
[2019] WASC 9
•16 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COCKBURN CEMENT LTD -v- MINISTER FOR ENVIRONMENT [2019] WASC 9
CORAM: ALLANSON J
HEARD: 24 DECEMBER 2018 & ON THE PAPERS
DELIVERED : 16 JANUARY 2019
FILE NO/S: CIV 3183 of 2018
BETWEEN: COCKBURN CEMENT LTD
Applicant
AND
MINISTER FOR ENVIRONMENT
First Respondent
THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
Second Respondent
Catchwords:
Practice and procedure - Access to court record confidential information - Restriction of access
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 11, O 67B
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | No appearance |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Solicitors:
| Applicant | : | Squire Patton Boggs |
| First Respondent | : | State Solicitor for Western Australia |
| Second Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
BK v ADB [2003] VSC 129
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216
Titelius v Public Service Appeal Board (1999) 21 WAR 201
ALLANSON J:
Order 67B
The common law does not recognise a right to obtain access to a document that has been filed in proceedings and is held as part of a court record.[1] Order 67 r 11 (now repealed) of the Rules of the Supreme Court 1971 (WA) required the leave of the court or a registrar for a person to inspect and take a copy of documents on the court record. Following the introduction of electronic filing in the court, O 67 r 11 was repealed. Access to the court records (including information and other things held by the court) is now governed by O 67B.
[1] See John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 [31]; Titelius v Public Service Appeal Board (1999) 21 WAR 201 [74] - [88], [99].
The present application is about restricting access by persons who are not parties to the action.
A person who is not a party to proceedings is entitled to limited information, as of right, under O 67B r 6. Otherwise, by O 67B r 11(3), a person who wants access to information or a record or other thing must apply for access. The application is made to the principal registrar, and the applicant need not serve the application on, or give notice of it to, any person unless the court orders otherwise. Under O 67B r 12, the court may order the application be served on a person specified in the order, and may request any person to give it submissions about the application.
A person who wishes to have access to the court record restricted, can apply for an order under O 67B r 5. By sub-rule (3) the Court may make an order that restricts access to information or a record or other thing if it considers
(a)that the information, record or thing is the subject of a pending claim that it is privileged or confidential; or
(b)that the information, record or thing is privileged or confidential; or
(c)that in the interests of justice, access to the information, record or thing should be restricted.
An application for an order under sub-rule (3) must
(a)state the grounds for the application;
(b) identify the information, record or thing to which the order should apply;
(c)state the person, or class of persons, whose access to the information, record or thing should be restricted by the order;
(d)state any conditions that should apply if the Court were to give access to the information, record or thing;
(e)state the period for which the order should apply.
Access to the information, record or thing is taken to be unavailable to all but the Court and the applicant until the application is decided.[2]
[2] RSC O 67B r 5(7).
The proceedings
The applicant, Cockburn Cement Limited, has applied for judicial review of a decision of the Minister for Environment on an appeal under s 102 of the Environmental Protection Act 1986 (WA). In general terms, the appeal related to conditions on a license granted pursuant to s 59(1) of the Environmental Protection Act.
In support of the application for review, Cockburn Cement filed an affidavit of Justin Leigh Miller, dated 21 December 2018. Mr Miller is the Technical Manager WA/NT for Cockburn Cement.
On 24 December 2018, Cockburn Cement also filed an application by summons for an order under O 67B r 5 that:
Until further order of the Court, access to the following documents be restricted only to the Court and the parties to these proceedings …:
(a)the Affidavit of Justin Leigh Miller affirmed 21 December 2018 in support of the Applicant's application for judicial review (Affidavit);
(b)any affidavits, submissions and or exhibits subsequently filed by any party after 21 December 2018 which refer to or relate to the applicant's commercial operations or affairs (Subsequent Documents).
The application was brought on the ground that the affidavit of Mr Miller, and its annexures,
contain information which is confidential business information and in the nature of trade secrets or would reveal information that has a commercial value the Applicant where release of that information could reasonably be expected to diminish or destroy that value. For example, it contains information about the Applicant's business such as:
(a)the content and break down of emissions;
(b)operational specifications; and
(c)production methods.
Cockburn Cement asked that the order extend to the subsequent documents on the ground that further affidavits, submissions and exhibits 'will most likely need to refer to the Affidavit and or contain additional confidential business information regarding the Applicant's operations'.
On 24 December 2018, on the first return of the judicial review application, and the return of the summons under O 67B, I put interim orders in place to preserve the position until the application under O 67B could be decided. Those orders were probably unnecessary because of O 67B r 5(6), which I overlooked.
The affidavit of Mr Miller is 1,227 pages long, with 25 attachments. It was not immediately apparent that all of the affidavit and its attachments could be properly described as confidential business information. I gave Cockburn Cement leave to file further affidavits and submissions.
It has filed two further affidavits of Mr Miller,[3] and two affidavits of its General Manager Operations, Daniel Martin Gregory.[4]
[3] Affirmed on 7 January 2019 and 11 January 2019.
[4] Affirmed 24 December 2018 and 11 January 2019.
Cockburn Cement has also filed written submissions.
Consideration
If the court makes an order made under O 67B r 5(3), it must include the reasons for it and sufficient information to identify clearly ‑
(a)the information, record or thing to which the order applies; and
(b)the person, or class of persons, whose access to the information, record or thing is restricted by the order; and
(c)any conditions that will apply if access to the information, record or thing were to be given by the Court; and
(d)the period during which the order applies.
The requirement is not that the court give reasons for the order, but the reasons must be included in the order, together with the information set out in pars (a) ‑ (d).
I would make these preliminary observations. First, Cockburn Cement does not seek to restrict disclosure to the respondents but only to someone who is not a party. Second, different considerations may apply if and when Mr Miller's affidavit is read in the action and referred to in open court. Third, this application is quite different from an application to suppress publication of evidence that has been given in court. There is no common law right of access and no presumption in favour of access. Fourth, the grounds in O 67B r 5 are alternatives. If Cockburn Cement shows that the information is confidential, it does not also need to show that an order restricting access is in the interests of justice.
The evidence of the confidentiality of the information is detailed in Mr Gregory's affidavit of 24 December 2018. Mr Gregory deposes, in effect, that the affidavit includes information about Cockburn Cement's manufacture processes and plant, emission concentration and rates, operational specifications and production methods, and that such information is confidential to Cockburn Cement.
I am satisfied that the first and second affidavits of Mr Miller contain information which is confidential: it is not otherwise publicly accessible; it is treated by Cockburn Cement as confidential and not voluntarily disclosed; and it relates to Cockburn Cement's business, commercial or financial affairs.
Cockburn Cement further submits that it does not need to show that the confidential information has a particular commercial character or a particular commercial value that would be damaged by release. It relies on further grounds of confidentiality ‑ outlined in its written submissions ‑ that the affidavit of Mr Miller contains information regarding confidential meetings and discussions; discloses details and information about the appeal process when the appeal was conducted on a confidential basis; and discloses details of a consultation process that occurred in confidence.
I agree with the general submission that the rule does not require an applicant to show that the confidential information has commercial value. And an order under O 67B r 5 could extend to discussions, correspondence and consultation that occurred in confidence. But these claims are not the subject of evidence and are not included in the grounds stated in the summons.
Cockburn Cement further claims confidentiality for information relating to Mr Miller's qualifications, as personal confidential information. I am not satisfied that the qualifications of a witness should be treated by the court as confidential or privileged.
Not all of the material in Mr Miller's first affidavit is confidential. On 29 December 2017, the Information Commissioner gave access to redacted versions of two documents which are attachments to Mr Miller's first affidavit; and the Office of the Appeals Convener has published a redacted version of its Report to the Minister (also an attachment to Mr Miller's affidavit) on its website.[5]
[5] See affidavit of Justin Lee Miller, 11 January 2019; affidavit of Daniel Martin Gregory, 11 January 2019.
The submission filed by Cockburn Cement identifies, in detail, what parts of the affidavit and its attachments have now been released in some way. The detail of that submission shows how impractical it would be to make an order permitting access to those parts of Mr Miller's affidavit which are no longer confidential, particularly where the court record is electronic. On consideration, I believe that the only practical way to maintain the confidentiality of the confidential information is to restrict access to the whole of the affidavit.
A further issue arises on the application. Cockburn Cement asks for an order restricting access to further affidavits, submissions and exhibits filed by either party in this matter. It justifies that proposed order on the grounds that it is impractical for it to file a separate application each time a document is filed. But the order sought would apply without regard to whether the court considers that the particular document is confidential, or that access should be restricted in the interests of justice.
The extension of the order to other documents does not fall within the terms of O 67B. The court has power in its inherent jurisdiction to conduct its proceedings in the way best calculated to advance the interests of justice,[6] including the power to restrict publication.[7] I am satisfied that the court has power, apart from the provisions of O 67B, to manage access to its records in a pending action. It is appropriate, in my opinion, to regulate any application for access to information rather than impose a blanket restriction on documents yet to be filed.
[6] See, for example, BK v ADB [2003] VSC 129.
[7] John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476E‑477; The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 [18] ‑ [19], [32].
Conclusion
This application does not fit neatly into the scheme established under O67B. I am satisfied that the first affidavit of Mr Miller is confidential and that access to that affidavit should be restricted for all third parties (that is, all persons other than the court and the parties to the action). It is not necessary to further state conditions to which access will be subject because access is not to be given.
The order will apply until the determination of the principal application, when the application to restrict access may be renewed.
For the present, I will make a further order - in effect renewing my interim order - for all other documents.
The orders will be as follows:
(1)The affidavit of Justin Leigh Miller, dated 21 December 2018, contains information which is confidential to the applicant, Cockburn Cement Limited.
(2)Pursuant to O 67B r 5 of the Rules of the Supreme Court, access to the affidavit of Justin Leigh Miller, dated 21 December 2018, be restricted to all persons except the court and the parties to the principal proceedings.
(3)Subject to any further order, the restriction in order 2 is to apply until the determination of the principal proceedings.
(4)Until further order, or until the determination of the principal application, whichever is earlier, any application for access to any information or record in these proceedings, pursuant to O 67B r 11, is to be referred to the managing judge and will be decided on notice to the applicant and respondents.
(5)The preceding order does not apply to information which persons are entitled to access pursuant to O 67B r 6 and r 7.
I will hear the parties on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate16 JANUARY 2019
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