DUONG and COVENTRY PTY LTD
[2015] WASAT 137
•4 DECEMBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: DUONG and COVENTRY PTY LTD [2015] WASAT 137
MEMBER: MS D QUINLAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 DECEMBER 2015
PUBLISHED : 7 DECEMBER 2015
FILE NO/S: CC 353 of 2015
BETWEEN: NHUNG HUY DUONG
Applicant
AND
COVENTRY PTY LTD
First RespondentBURMINGHAM WA PTY LTD
Second Respondent
FILE NO/S :CC 744 of 2015
BETWEEN :COVENTRY VILLAGE PTY LTD (ACN 160 598 498)
Applicant
AND
NHUNG HUY (DUONG)
First RespondentBURMINGHAM WA PTY LTD
Second Respondent
Catchwords:
Retail shop lease Production of documents Lease documents redacted Whether commercially sensitive Relevance Conditional access to documents Costs
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 15C
State Administrative Tribunal Act 2004 (WA), s 34(5), s 87(1)
Result:
On or before 14 December 2015, Coventry and Burmingham are to provide to the solicitors for Mr Duong unredacted copies of the documents previously provided on 2 September 2015 on the condition that Mr Duong may only view those documents at the offices of his solicitors and he may not take away any copies of those documents
Summary of Tribunal's decision:
This was an interim application for directions under s 34(5) of the State Administrative Tribunal Act 2004 (WA) concerning two proceedings which relate to a retail shop lease at Coventry Village, Morley. The landlord provided documents that were redacted, principally the details of rent in lease documents. Mr Duong, the tenant, objected to the documents being redacted and this interim issue has been determined on the documents. The landlord submitted that the redacted portions were commercially sensitive and were also irrelevant though conceded that perhaps an aspect was relevant for the issue of mitigation or damages. The landlord proposed (in an offer to Mr Duong and in submissions to the Tribunal) that Mr Duong be allowed limited access to the unredacted documents at his solicitors' offices on the condition that Mr Duong was not permitted to take away copies. Mr Duong submitted the redacted portions were relevant and the implied undertaking was sufficient to protect confidentiality. Mr Duong rejected the offer on the basis that he had incurred substantial costs in relation to the interim issue due to the conduct of the landlord in redacting the documents without leave of the Tribunal. Mr Duong also objected to the orders in those terms on the basis that he would then be bound to continue to be legally represented throughout the proceedings. The Tribunal considered it was readily apparent that the redacted portions may be commercially sensitive though it was not as readily apparent whether the redacted portions were relevant. The Tribunal was not persuaded by Mr Duong's objection to the proposal and considered the proposal to be a reasonable outcome in the circumstances. Mr Duong's application for costs was not allowed.
Category: B
Representation:
CC 353 of 2015
Counsel:
Applicant: N/A
First Respondent : N/A
Second Respondent : N/A
Solicitors:
Applicant: N/A
First Respondent : N/A
Second Respondent : N/A
CC 744 of 2015
Counsel:
Applicant: N/A
First Respondent : N/A
Second Respondent : N/A
Solicitors:
Applicant: N/A
First Respondent : N/A
Second Respondent : N/A
Case(s) referred to in decision(s):
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148
AW v Rayney [2010] WASCA 161
Skewes and City of Rockingham [2014] WASAT 14
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Proceedings CC 353 of 2015 and CC 744 of 2015 are both concerned with a retail shop lease located at Coventry Village, Walter Road, Morley. The issue in dispute principally arises under s 15C of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) as to alleged unconscionable conduct by the landlord, being the first respondent in CC 353 of 2015 and the applicant in CC 744 of 2015 (Coventry) and/or the second respondent in both CC 353 of 2015 and CC 744 of 2015 (Burmingham).
On 2 September 2015 Coventry and Burmingham together filed and served documents in accordance with the orders made by the President, Justice Curthoys, on 18 August 2015. Some portions of those documents had been redacted by Coventry and Burmingham (redacted portions).
The applicant in CC 353 of 2015 and the first respondent in CC 744 of 2015 (Mr Duong) has challenged the redaction of the documents by Coventry and Burmingham. On 22 September 2015 Member Wallace made orders to the effect that the parties were to file written submissions on the question of the redacted portions and the matter would be determined on the papers.
Mr Duong filed written submissions on 25 September and 9 October 2015. Coventry and Burmingham together filed written submissions (as amended) on 13 October 2015.
State Administrative Tribunal Act 2004 (WA)
Pursuant to s 34(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the Tribunal may give a direction requiring a party to produce a document or other material or provide information. The provisions of the SAT Act in relation to 'exempt matter' and 'protected matter' are not relevant to the redacted portions. The Tribunal has discretion whether to exercise its power in s 34(5) of the SAT Act in that it may give a direction.
Coventry's and Burmingham's submissions
Coventry and Burmingham submit that the redacted information is commercially sensitive and not relevant to the issues in dispute. Redaction of documents is common practice in litigation: AW v Rayney [2010] WASCA 161 per curiam at [142] ‑ [144]. Coventry and Burmingham submit that these principles should be given due regard in Tribunal proceedings.
However, Coventry and Burmingham further submit that they would consent to a practical alternative to protect Coventry's and Burmingham's interests without providing unfettered disclosure of the redacted portions to Mr Duong.
This practical alternative suggested by Coventry and Burmingham is that they would consent to orders that unredacted copies would be provided to Mr Duong's solicitors and that Mr Duong be restricted to viewing these documents at the solicitors' offices and not be allowed to take copies away. This offer was also made in the context that all parties to these proceedings are aware of the implied undertaking in litigation.
The Court of Appeal summarised the meaning of an 'implied undertaking' in Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 at [47] as follows:
In relation to documents produced by one party to another in the course of discovery in court proceedings, there is an implied undertaking that the party will not (i) make the contents of discovered documents public, (ii) communicate the contents of such documents to any stranger to the suit, or (iii) use the documents or copies of them for any purpose that is collateral to the purpose which production of the documents is intended to serve: Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 334; Harman v Secretary of State, Home Department [1983] 1 AC 280, 304, 306, 308, 327; Hearne v Street (2008) 235 CLR 125.
This implied undertaking has been found to apply to Tribunal proceedings: see Skewes and City of Rockingham [2014] WASAT 14 at [21].
Mr Duong's submissions
Mr Duong submitted that the redacted portions of the documents may be relevant to three issues in dispute: unconscionable representation; unconscionable termination; and damages. Mr Duong further submitted that the implied undertaking was ordinarily sufficient to protect the confidentiality of information in litigation.
Mr Duong rejected an offer made via email on 2 October 2015 by Coventry and Burmingham to settle the dispute concerning the redacted portions. That offer was repeated in the submissions filed by Coventry and Burmingham later on 2 October 2015 (with an amended version of those submissions, such amendments not relevant to the offer, filed on 13 October 2015). Mr Duong rejected the offer of inspection at his solicitors' offices on the basis that Mr Duong would be forced into being represented by a lawyer for the duration of the proceedings. Mr Duong also rejected the offer (as explained in his solicitors' email reply on 2 October 2015) on the basis that substantial legal costs had been incurred and that Coventry and Burmingham had unnecessarily prolonged proceedings with their conduct regarding the redacted portions.
Tribunal's decision
It is readily apparent from a perusal of the lease documents that only small portions have been redacted (principally the details concerning rent) and that this information may be commercially sensitive to Coventry and Burmingham as landlords negotiating leases. The implied undertaking may not be sufficient to protect that commercial interest.
It is not as readily apparent as to whether the redacted portions are relevant to the issues in dispute. Whilst the Tribunal is inclined to the view that the redacted portions are not relevant, I am persuaded to allow access, due to the offer made by Coventry and Burmingham. It is the Tribunal's view that this is a reasonable suggestion in all of the circumstances in order to resolve the dispute concerning the redacted portions.
The Tribunal is not persuaded by Mr Duong's reasons for rejecting that offer. Firstly, further costs were incurred by both parties in rejecting that offer and no counteroffer which included Mr Duong's costs up to 2 October 2015 was made by Mr Duong. Secondly, Mr Duong submits that he would be forced into being represented by a lawyer for the duration of the proceedings. These are interim direction orders and can be varied if the need arises therefore this submission is without foundation.
Costs
Mr Duong has largely been successful in this interim application in gaining access to the redacted portions. Mr Duong claims indemnity costs concerning the issue of the redacted portions. Mr Duong claims that Coventry and Burmingham redacted the documents without leave and without justification, thereby conducting themselves in such a way as to unnecessarily prolong the proceedings. The Tribunal does not accept this submission. It is the Tribunal's view that, whilst it may have been helpful for Coventry and Burmingham to have raised the issue of redaction when the President made orders for production on 18 August 2015, it was not unreasonable for them to redact first and then await any objections being raised by Mr Duong even though the onus then rests on Coventry and Burmingham to satisfy the Tribunal that redaction is justified. The Tribunal takes a contrary view to Mr Duong. Some of the conduct by Mr Duong concerning the redacted portions has been done in such a way as to either, at worst, unnecessarily prolong the proceedings or, at best, overcomplicate matters. A considerable portion of the written submissions by Mr Duong focuses on the misconceived submission that there has been poor conduct by Coventry and Burmingham rather than the substantive issue as to whether the redacted portions should remain that way. Further, it is the Tribunal's view that Mr Duong unreasonably refused the offer made via email by Coventry and Burmingham, and certainly, at least from the date of the email on 2 October 2015, Mr Duong has arguably unnecessarily prolonged the resolution of the interim dispute as to the redacted portions.
Therefore, the Tribunal is of the view that the default position in s 87(1) of the SAT Act should apply and that each party bear their own costs of the interim application.
Orders
Accordingly, pursuant to s 34(5) of the SAT Act, the Tribunal orders as follows:
1.On or before 14 December 2015 the first respondent in CC 353 of 2015 and the applicant in CC 744 of 2015 (Coventry) and the second respondent in both CC 353 of 2015 and CC 744 of 2015 (Burmingham) are to provide to the solicitors for the applicant in CC 353 of 2015 and the first respondent in CC 744 of 2015 (Mr Duong) unredacted copies of the documents previously provided on 2 September 2015 on the condition that Mr Duong:
(a)may only view those documents at the offices of his solicitors; and
(b)may not take away any copies of those documents.
I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D QUINLAN, MEMBER
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