Final Stop Pty Ltd v QBE Insurance (Australia) Ltd (Ruling)
[2024] VSC 101
•8 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2022 03914
| FINAL STOP PTY LTD (ACN 630 165 061) | Plaintiff |
| v | |
| QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035) | Defendant |
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JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2024 |
DATE OF RULING: | 8 March 2024 |
CASE MAY BE CITED AS: | Final Stop Pty Ltd v QBE Insurance (Australia) Ltd (Ruling) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 101 |
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PRACTICE AND PROCEDURE — Application by a non‑party to inspect and obtain copies of documents filed in a proceeding — Documents the subject of a confidentiality order — Leave granted to inspect and obtain copies.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | None | |
| For the Defendant | Michael Whitten KC with David Carolan | Hall & Wilcox |
| For Corplex Pty Ltd | Suresh Senathirajah KC with Nawaar Hassan | Wotton & Kearney |
HIS HONOUR:
A.INTRODUCTION
Corplex Pty Ltd (‘Corplex’) has applied for leave to inspect and obtain copies of documents filed in this proceeding which it contends are relevant to a related proceeding in which it is a defendant.[1]
[1]The ITM Proceeding referred to in paragraph 8 below.
The application is opposed by QBE Insurance (Australia) Ltd (‘QBE’), the defendant in this proceeding which also has the carriage and conduct of the plaintiff’s case in the related proceeding asserting its rights of subrogation.[2] Final Stop Pty Ltd (‘Final Stop’), the plaintiff in this proceeding, did not seek to be heard on this application.
[2]Whether QBE has such rights of subrogation is disputed by the defendants in the ITM Proceeding.
The application is made under r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).
For the reasons set out below, I will grant leave to Corplex to inspect and obtain copies of the documents sought in its application.
B.FACTUAL BACKGROUND[3]
[3]The facts set out below are drawn predominantly from the Statement of Agreed Facts sent by QBE on 27 February 2024 (‘Agreed Facts’).
QBE insured Independent Tube Mills Pty Ltd (‘ITM’) pursuant to an Industrial Special Risks policy (‘Policy’). ITM claimed against the Policy. QBE accepted the claim and indemnified ITM in certain respects, but there was a dispute in other respects.
On 16 May 2014, ITM executed a deed assigning its rights under the Policy to Australian Pipe & Tube Pty Ltd (‘APT’). On 19 August 2014, ITM gave notice of the assignment to QBE.
In 2015, APT commenced Federal Court of Australia Proceeding VID 527 of 2015 against QBE (‘Federal Court Proceeding’), in which APT claimed indemnification from QBE as assignee of ITM’s rights under the Policy. APT then in turn assigned its rights under the Policy to Leaning Back Pty Ltd (‘Leaning Back’). On 8 October 2018, the Federal Court entered judgment against QBE in favour of Leaning Back.
In 2016, exercising rights of subrogation, QBE commenced proceeding S CI 2016 04423 in the Supreme Court of Victoria in ITM’s name (‘ITM Proceeding’). Corplex is the second defendant to the ITM Proceeding. Intrax Consulting Engineers Pty Ltd (‘Intrax’) is the third defendant to the ITM Proceeding.
In March 2017, APT issued proceeding S ECI 2017 0066 (‘APT Proceeding’) against the same defendants in the ITM Proceeding and one further defendant. APT claimed as assignee of ITM. The subject matter of the APT proceeding was effectively the same damage claimed in the ITM Proceeding.
On 27 November 2018, QBE, APT, Leaning Back and Final Stop Pty Ltd (‘Final Stop’) entered into a Deed of settlement and release (‘2018 Deed’).
Clause 3(h) of the 2018 Deed provides as follows:
Any settlement and/or judgment funds recovered in the QBE Proceeding and/or the APT Proceeding and received by QBE, APT, Leaning Back and/or Final Stop will be aggregated and distributed as follows:
(i)Firstly, in payment of OBE's legal costs and disbursements incurred in the QBE Proceeding and/or the APT Proceeding from the date of QBE assumes the conduct of the APT Proceeding pursuant to and in accordance with clause 3(b), up to $500,000;
(ii)The balance, if any, to be divided equally between OBE and Final Stop.
Clause 3(i) of the 2018 Deed provides as follows:
Without prior consultation with Final Stop, QBE will not elect (including on behalf of APT, Leaning Back and/or Final Stop) to discontinue both the QBE Proceeding and the APT Proceeding on terms that would result in no net recovery after deduction of OBE’s legal costs under clause 3(h)(i):
(i)If to do so would be contrary to its duty of utmost good faith;
(ii)Without first giving Final Stop the option of assuming the conduct of the QBE Proceeding and the APT Proceeding (and assuming liability for the costs, including adverse costs orders, of such proceedings).
In November 2018, the APT Proceeding was discontinued.
In September 2022, Final Stop exercised the option contained in clause 3(i) of the 2018 Deed or, alternatively, notified QBE that it intended to exercise the option contained in clause 3(i) of the 2018 Deed and assume conduct of the QBE Proceeding.[4]
[4]Statement of Claim filed by Final Stop on 7 December 2022, [44]–[46].
In around September 2022, a dispute arose between Final Stop and QBE as to the operation of the 2018 Deed.
On 4 October 2022, Final Stop commenced this proceeding by originating motion. It sought orders requiring QBE to transfer the conduct of the ITM Proceeding to Final Stop and restraining QBE from taking any steps to settle or in any way compromise the ITM Proceeding.
On 4 November 2022, there was a directions hearing in this proceeding. Elliott J made an order by consent that, subject to further order, access to the court file is to be restricted to the parties to the proceeding and otherwise only be made available for inspection with leave of the court (‘Confidentiality Order’). The proceeding was fixed for trial on 7 December 2022.
On 11 November 2022, there was a further directions hearing. Elliott J ordered that the defendant file and serve any affidavits that it intends to rely on at trial.
On 18 November 2022, there was a further directions hearing. The trial date was vacated and pleadings were ordered to be filed.
In December 2022, the parties filed and served pleadings.
At a directions hearing on 3 February 2023, the proceeding was fixed for trial on 14 March 2023 and submissions were ordered to be filed.
On 10 March 2023, there was a further directions hearing. By consent between Final Stop and QBE, Elliott J made an order that Final Stop ‘hereupon is to assume the conduct of [the ITM Proceeding], assuming liability for the costs, including adverse costs orders of that proceeding’ (‘Transfer Order’).
On 23 March 2023, QBE’s solicitor, Hall & Wilcox, sent an email to Corplex’s solicitor which stated, relevantly:
our file in this matter is currently being transferred to HFW, who act for Final Stop Pty Ltd which has assumed conduct of the proceeding for the plaintiff (including assuming liability for the costs, including adverse costs orders).
On 3 April 2023, Hall & Wilcox provided to Corplex a copy of the Transfer Order.
On 5 April 2023, both Corplex and Intrax wrote to the chambers of Elliott J seeking access to inspect the court file.
On 21 April 2023, Corplex was informed that the management of this proceeding had been transferred to Lyons J.
On 9 May 2023, Lyons J made orders by consent that:
(a) Corplex and Intrax be granted immediate access to the originating process and pleadings, reasons for any rulings or determinations, and transcripts of any hearing except for the hearing of 4 November 2023.
(b) QBE and Final Stop provide a list of materials on the file, stating which documents they say should not be inspected (‘List of Restricted Materials’), and setting out the grounds for which they say that the items on the list should not be inspected.
(c) Corplex and Intrax inform the parties and the Court if they seek to inspect any documents on the List of Restricted Materials and set out reasons as to why inspection should be granted.
On 16 May 2023, Final Stop and QBE each provided their List of Restricted Materials.
On 23 May 2023, Corplex provided a list of the documents it sought to inspect and set out its reasons as to why inspection should be granted. That list did not include the documents sought on this application.
On 23 June 2023, Lyons J made orders that:
(a) Corplex and Intrax file further material and submissions in support of their applications.
(b) QBE and Final Stop file any material and submissions in response.
(c) Final Stop file and serve an index of the documents comprising the exhibits to the affidavits of:
(i) Tina Brandi sworn 4 October 2022;
(ii) David Brandi sworn 10 November 2022;
(iii) Travis Kemp sworn 21 February 2023; and
(iv) David Brandi sworn 24 February 2023;
and in respect of each document state the justification for the objection to the inspection.
(d) QBE file and serve an index of the documents comprising the exhibits to the affidavits of:
(i) Gregory Philip King affirmed 3 October 2022; and
(ii) Matthew Peter McDonald affirmed 27 January 2023;
and in respect of each document state the justification for the objection to the inspection.
On 30 June 2023, Corplex filed submissions in support of its application to inspect the documents set out in its list of 23 May 2023.
In early July 2023, Corplex, Intrax, Final Stop and QBE agreed to stay the applications on the basis that:
(a) certain agreed documents from the court file would be produced to Corplex and Intrax;
(b) QBE and Final Stop would each prepare the index of documents exhibited to affidavits that had been ordered on 23 June 2023, but without stating the justification for the objection to inspection of each item; and
(c) Corplex and Intrax reserved their right to continue their applications in future.
On 10 July 2023, Final Stop filed the index of documents to the plaintiff’s exhibits.
On 11 July 2023, QBE filed the index of documents to the defendant’s exhibits.
On 11 July 2023, Lyons J made orders by consent:
(a) requiring Final Stop and QBE to produce an index of exhibits to affidavits on the Court file;
(b) staying the applications;
(c) reserving liberty to apply; and
(d) noting in ‘Other Matters’ that Corplex and Intrax each reserved their rights to continue, at any time, their applications to inspect and obtain copies of documents relating to the proceeding pursuant to rr 28.05(1) and 28.05(2).
On 28 August 2023, Corplex brought an application in the ITM Proceeding to stay the ITM Proceeding on the basis that its continued conduct by Final Stop was an abuse of process. On 6 October 2023, Corplex filed its submissions in that application.
By orders of Stynes J made on 1 September 2023 in the ITM Proceeding, the plaintiff in the ITM Proceeding was to file its submissions in response to Corplex’s application by 20 October 2023. At that time, Final Stop had conduct of the ITM Proceeding on behalf of the plaintiff. The plaintiff did not file any such submissions by 20 October 2023.
On 30 October 2023, Final Stop and QBE entered into a new deed dealing with the conduct of the ITM Proceeding (‘2023 Deed’).
Clause 2.1(a) of the 2023 Deed provides:
On and from [the date the 2023 Deed was executed] QBE will resume carriage and conduct of the [ITM] Proceeding on behalf of the Plaintiff in the [ITM] Proceeding.
Clause 2.3 of the 2023 Deed provides:
Subject to clause 4.2, QBE shall be entitled to retain any and all amounts recovered in the [ITM] Proceeding irrespective of when any entitlement to such recovery arose.
Clause 2.4 of the 2023 Deed provides:
QBE is liable to pay any and all costs ordered against the Plaintiff or Final Stop in the [ITM] Proceeding irrespective of when any obligation to pay such costs arose.
Clause 4.2 of the 2023 Deed provides:
In substitution of any rights Final Stop may have had to the proceeds of the [ITM] Proceeding under the [2018 Deed] or otherwise QBE shall pay to Final Stop the amount set out in this clause within 28 days of settlement or Final Judgment in the [ITM] Proceedings:
Amount Recovered (as defined in cl. 4.3)
Payment to Final Stop by QBE
$1 to less than $1M
$500,000
$1M to less than $2M
$750,000
$2M to less than $3M
$1,250,000
$3M to less than $4M
$1,750,000
$4M or more
$2,250,000
On 31 October 2023, Hall & Wilcox served a notice of change of solicitor advising that Hall & Wilcox again acted for the plaintiff in the ITM Proceeding. Hall & Wilcox wrote to the Court advising that the plaintiff was not in a position to file submissions as it had only resumed conduct of the proceeding that day.
On 2 November 2023, Hall & Wilcox informed Corplex that Final Stop no longer had conduct of the ITM Proceeding and that QBE had resumed conduct of the proceeding and intended to continue prosecuting the plaintiff’s claims pursuant to its right of subrogation.
On 20 November 2023, the plaintiff in the ITM Proceeding filed a summons seeking amongst other things that the hearing of the stay applications on 24 November 2023 be adjourned.
On 22 November 2023, Corplex served a notice to produce in the ITM Proceeding, seeking (amongst other things) production of the documents now sought in this application. The notice sought production at the hearing of the stay application listed on 24 November 2023.
On 28 November 2023, the Court ordered in the ITM Proceeding that the plaintiff was not required to produce the documents sought in paragraphs 3, 4 and 5 of the notice to produce on the basis that the effect, if not the intention, would be to circumvent the orders of Elliott J and Lyons J in this proceeding. The Court ruled that the appropriate course was for an application to inspect those documents to be made in this proceeding.
On 8 December 2023, Corplex applied to continue its application to inspect documents on the court file.
Other than orders and documents relating to Corplex’s application to inspect documents, Corplex has had produced to it the following documents from the court file in this proceeding:[5]
[5]See Agreed Facts, [38].
(a) Originating motion;
(b) Summons on originating motion;
(c) Statement of claim;
(d) Defence;
(e) Reply;
(f) 2018 Deed;
(g) 2023 Deed;[6]
[6]The 2023 Deed was produced to Corplex pursuant to an order made on 28 November 2023 in the ITM Proceeding.
(h) Email dated 20 September 2022 referred to in paragraph 44 of the Statement of Claim;
(i) Letter dated 27 September 2022 referred to in paragraph 45 of the Statement of Claim;
(j) Email dated 28 September 2022 referred to in paragraph 46 of the Statement of Claim;
(k) Partially redacted transcript of the hearing before Elliott J on 4 November 2022;
(l) Transcript of the hearings before Elliott J on 18 November 2022, 3 February 2023, 10 March 2023; and
(m) Orders made by Elliot J on 4 November 2022, 11 November 2022, 18 November 2022, 3 February 2023, 10 March 2023, and 9 May 2023.
C.CORPLEX’S APPLICATION
Corplex seeks access to the following documents:
(a) All affidavits filed in the Final Stop proceeding including (but not limited to):
(iii) affidavit of Tina Brandi dated 4 October 2022;
(iv) affidavit of Gregory Phillip King dated 3 October 2022;
(v) affidavit of David Brandi dated 10 November 2022;
(vi) affidavit of Matthew Peter McDonald dated 27 January 2023;
(vii) affidavit of Travis Kemp dated 21 February 2023; and
(viii) affidavit of David Brandi dated 24 February 2023;
(b) The exhibits to all affidavits filed in the Final Stop Proceeding; and
(c) Submissions filed in the Final Stop Proceeding, including (but not limited to):
(i) outline of submissions of the defendant dated 24 February 2023;[7] and
(ii) submissions in reply of the plaintiff dated 7 March 2023.
[7]The outline of submissions of the defendant is in fact dated 22 February 2023.
Corplex also seeks an order that the Confidentiality Order be set aside ‘with respect to the documents [Corplex is] seeking’.[8]
D.CORPLEX’S SUBMISSIONS[9]
[8]Transcript of Proceedings (28 February 2024) 1.28–1.31.
[9]Corplex’s submissions set out below are drawn predominantly from Corplex’s Submissions on Application to Inspect Documents filed on 21 December 2023.
Corplex’s submissions may be summarised in three main points: the documents sought are relevant to Corplex’s abuse of process application;[10] the documents sought are relevant to Corplex’s defence of the ITM Proceeding; and there are no grounds to maintain confidentiality.
[10]See paragraph 36 above.
The documents sought are relevant to Corplex’s abuse of process application
Corplex submits that QBE’s motivation for its decision to discontinue the proceeding in September 2022, and to resume conduct of it in October 2023, are of central relevance to the question of whether the continued conduct of the ITM Proceeding is an abuse of process.
Corplex submits that the affidavits filed in this proceeding, and the exhibits to those affidavits, are likely to contain evidence of the communications between Final Stop and QBE at the time that QBE decided to discontinue the ITM proceeding and Final Stop sought to exercise its option to assume the conduct of it. Those communications are likely to shed light on QBE’s motivation for deciding to discontinue the ITM proceeding.
The documents sought are relevant to Corplex’s defence of the ITM Proceeding
Corplex does not accept that QBE has legitimately resumed conduct of the ITM Proceeding. If QBE no longer has a right to conduct the ITM Proceeding on a subrogated basis, Corplex submits that it is entitled to defend the proceeding on that specific basis.
Corplex submits that the continued existence of QBE’s right of subrogation depends on whether its right of subrogation has survived the execution and performance of the 2018 Deed.
Corplex submits that the documents sought are relevant to that issue in two ways:
(a) First, the circumstances in which the 2018 Deed came to be executed and performed may lead to the conclusion that QBE’s right of subrogation has been irrevocably waived or otherwise extinguished. The documents sought are likely to shed light on those circumstances.
(b) Secondly, the documents sought are likely to assist with the proper construction of the 2018 Deed, and in particular the legal consequence of QBE agreeing to Final Stop ‘assuming the conduct’ of the ITM Proceeding.
Corplex submits that, despite consenting to the Transfer Order, Final Stop and QBE were not agreed on the proper construction and effect of the 2018 Deed, and in particular, the meaning of the right to ‘assume conduct of the proceeding’.
Corplex submits that there is a real question as to whether a right of subrogation is capable of assignment at all. Even if it is, there is a real question as to whether it could be assigned to Final Stop, who has no genuine interest in the ITM Proceeding. If there could be no assignment, then there is a real question as to whether an agreement for Final Stop to assume the conduct of the proceeding amounted to an extinguishment of QBE’s right of subrogation.
Corplex submits that those questions are to be resolved by ascertaining the proper construction of the 2018 Deed. In circumstances where the words of the 2018 Deed are ambiguous, resort may be had to the surrounding circumstances. Given that one of the remedies sought by Final Stop was rectification of the 2018 Deed, the documents filed in the Final Stop proceeding are likely to shed light on the surrounding circumstances.
In reply to QBE’s submission that this proceeding is not the ‘appropriate venue’ for Corplex to seek these documents, Corplex submits that QBE in effect seeks to impose on Corplex an infinite loop in which neither this proceeding, nor the ITM Proceeding, is the ‘appropriate’ venue in which it may access documents relevant to its case. According to QBE, Corplex is not entitled to have produced to it relevant documents in QBE’s possession which — but for the existence of this proceeding — would clearly have been discoverable in the ITM Proceeding. Corplex submits that that position is untenable. Relevant documents otherwise in the possession of a party cannot be shielded from production simply because they have been exhibited to an affidavit, filed in another proceeding, and made the subject of a confidentiality order obtained by consent (with a different party) and without notice to Corplex which restricts public access to the court file. A confidentiality order made by consent in one proceeding cannot limit the discovery rights of parties to another proceeding (who were not given an opportunity to be heard on the making of the confidentiality order). The principles allowing redaction or withholding of material based on confidentiality apply only to documents that are otherwise irrelevant.[11]
[11]Referring to Gunns Ltd v Marr [2008] VSC 464.
There are no grounds to maintain confidentiality
Corplex submits that r 28.05 ‘is founded on the principle of open justice which protects the public’s right to be informed and to monitor court proceedings. The party objecting to the inspection of documents must do more than simply show that the documents are confidential. It ‘must demonstrate that it would be seriously compromised or adversely affected’ if confidentiality were not maintained.[12] It is ‘not sufficient simply to claim confidentiality and rely upon assumptions about how the person may be adversely affected by disclosure, without an evidentiary basis for the claim’.[13]
[12]Referring to Wilson v Mitchell [2014] VSC 280, [14]
[13]Referring to Re Japara Holdings Pty Ltd [2010] VSC 361, [11].
Corplex submits that in exercising its inherent jurisdiction to make orders protecting confidentiality, the court will go only so far as is necessary for the administration of justice. It is not enough for a party to merely assert that confidentiality ought to be protected; rather it must identify a basis for the court to maintain the confidentiality. The party objecting must adduce evidence of some apprehended particular or specific harm or damage that the disclosure would cause.[14]
[14]Referring to Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, [67]–[69].
Corplex submits that, in this case, the administration of justice demands that Corplex be allowed to inspect the documents on the court file, for the following reasons:
(a) First, for the reasons referred to above, the documents are patently relevant to both Corplex’s application for a stay of the ITM Proceeding, and to its substantive defence of that proceeding.
(b) Secondly, the Confidentiality Order in this proceeding was made without significant argument, and without the benefit of submissions from Corplex. There was no contradictor to the making of that order.
(c) Thirdly, the Confidentiality Order was expressly sought on an interim basis, until the hearing of the Final Stop proceeding. The apprehended harm was said to be the risk that, if Final Stop was unsuccessful in its claim for an order transferring conduct of the ITM Proceeding to it, QBE’s negotiating position in the ITM Proceeding would be impaired. Since then, not only has the Transfer Order been made, but it has now superseded by agreement of QBE and Final Stop as embodied in the 2023 Deed. The parties to the Final Stop proceeding have expressed an intention to discontinue it. In effect, QBE and Final Stop have chosen this path (including litigating in court), and they should not be permitted to conceal aspects which are open to disclosure in the normal way. Maintenance of the Confidentiality Order cannot now be justified.
(d) Fourthly, Final Stop and QBE have not articulated or put on any evidence as to what specific harm they contend they would suffer if Corplex were granted access to the documents sought. The harm must be something more than that the documents would adversely affect plaintiff’s case in the ITM Proceeding. None of the recognised bases for privilege from inspection are applicable.
(e) Fifthly, any prejudice foreshadowed by QBE’s senior counsel before Elliott J has now been supervened by subsequent events.[15] Elliott J’s confidentiality order did not relate only to affidavits and submissions within the ambit of r 28.05(2). Rather, it covered the entire court file, including documents that would ordinarily be open to inspection as of right pursuant to r 28.05(1). It is evident from QBE’s submission before Elliott J that the parties sought to keep confidential from Corplex not only the evidence and submissions filed, but the entire arrangement and subsequent dispute between QBE and Final Stop. However, since that time Corplex has learned of the dispute and has been provided with the pleadings, transcripts, 2018 Deed, and a selected number of exhibits to affidavits. The arrangements between QBE and Final Stop are now well known to Corplex. The documents now sought by Corplex shed light on the circumstances surrounding the 2018 Deed and the dispute, which are relevant to the issues raised in Corplex’s abuse of process application. However, they are unlikely to provide Corplex with any additional information relevant to QBE’s current negotiating position. In any event, the arrangements set out in the 2018 Deed — to which the documents sought relate — have been superseded by the 2023 Deed. It is difficult to conceive how Corplex now gaining detailed knowledge of an arrangement that is no longer in place could adversely affect QBE’s future conduct of the ITM Proceeding.
E.QBE’S SUBMISSIONS[16]
[15]Corplex’s reply submissions dated 26 February 2024, [16].
[16]QBE’s submissions set out below are drawn predominantly from QBE’s Submissions on Corplex’s Document Inspection Application filed on 21 December 2023.
QBE submits, in summary, that Corplex’s application for leave to inspect should not be granted because:
(a) Corplex has not advanced any reason to vacate Elliott J’s Confidentiality Order;
(b) Corplex’s contention that leave should be granted because the documents might be relevant to its abuse of process application in the ITM Proceeding smacks of a bootstrap argument. It has not demonstrated, even for the sake of argument and putting its case at its highest, that any evidence as to the circumstances in which QBE and Final Stop entered their 2018 and 2023 Deeds, or gave effect to them, might support its assertion that the agreements between those parties for the conduct of the ITM Proceeding could amount to an abuse of process which could warrant the entering of judgment in its favour or a permanent stay of the claim in that proceeding;
(c) for the purposes of r 28.05(3), none of the documents sought have been read by any party or relied on by the Court; and
(d) in any event, the making of the inspection orders sought would result in irremediable prejudice to QBE in its prosecution of the ITM Proceeding (or conducting any settlement negotiations in respect of it).
QBE submits that Corplex is not in a position vis‑à‑vis this proceeding that is materially different from any member of the public. Its allegations of abuse of process in the ITM Proceeding do not provide it a shortcut to access documents to which it is not entitled.
QBE’s written submissions also dealt with whether the documents sought had been ‘read or relied on’ within the meaning of r 28.05(3). Corplex in its oral submissions was content to proceed on the basis that none of the documents it seeks to inspect have been read or relied on in open court, and that leave is therefore required to inspect them.[17]
[17]Transcript of Proceedings (28 February 2024) 6.29–7.2.
No reason to vacate Elliott J’s confidentiality order
QBE submits that, notwithstanding the consent orders for limited disclosure made by Lyons J on 11 July 2023, there is no reason why the Court would by order (as opposed to by consent) vacate Elliott J’s Confidentiality Order.
QBE submits that the basis on which Elliott J made the order appears from the explanation QBE’s Senior Counsel gave at the first directions hearing:
we’ve carefully evaluated whether we can ask Your Honour to make an order directing that there be no inspection of the [T. Brandi Affidavit] … it’s suitable for us to ask Your Honour to make that confidentiality order at least until the hearing of the proceeding.
And if Your Honour at that point has ongoing concerns about it, we can address that then, but the order we seek at the moment is just until then. Your Honour will appreciate that although it might otherwise become known to the defendants in the principal litigation, it’s not fair to us if the originating motion is dismissed but our negotiating position in the principal litigation is impaired because we were sued and the matter therefore came to the notice of a court file and the public in that way.[18]
[18]Transcript of Proceedings (4 November 2022) 10.21–11.9.
QBE submits that it is in effect Corplex’s position that the Confidentiality Order was not in truth a considered order because it was made without a contradictor, and more specifically without submissions from Corplex, a stranger to this proceeding. But the basis on which the Confidentiality Order was made appears from the transcript extract above. It is most unlikely that Elliott J — or any judge — would have been diverted from the course he took by any submission Corplex could have made.
QBE submits that the extract above demonstrates that the true concern motivating the Confidentiality Order was prejudice to those on the plaintiff’s side of the ITM proceedings should their internal arrangements be exposed to public view (or more relevantly, the view of the defendants in the ITM Proceeding). That justification still squarely applies. Corplex would not be seeking access to these documents if the situation were otherwise.
QBE submits that Corplex’s contention that neither party to this proceeding has ‘articulated or put on evidence’ as to specific harm that might be suffered were Corplex granted the access it seeks is misconceived. Neither the actual form of r 28.05 nor the terms of the Confidentiality Order involve the identification of ‘specific harm’.
QBE submits that Corplex’s reference to discovery obligations under r 29.01.1(3) of the Rules is misplaced. The documents Corplex seeks on this application are not relevant to any allegation made in the ITM Proceeding, so as to attract any discovery obligation. Alternatively, if they are, then that proceeding is the appropriate venue for any discovery dispute.
Prejudice generally
QBE submits that the material to which Corplex seeks access speaks to a contest between the Final Stop and QBE interests (in this proceeding) which ought nevertheless remain out of sight of Corplex and the other ITM Proceeding defendants pursuing interests that are collateral to this proceeding because:
(a) the materials are subject to common interest privilege as between Final Stop and QBE;[19] and/or
(b) their disclosure to Corplex would cause Final Stop and QBE irredeemable prejudice of precisely the type that actuated Elliott J in making the confidentiality order.
F.LEGAL PRINCIPLES
[19]Referring to the Evidence Act 2008, s 122(5)(c); Mann v Carnell (1999) 201 CLR 1, 14 [32].
Rule 28.05 provides:
Inspection of documents
(1)Subject to this Rule, when the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.
(2)A person not a party may not inspect or obtain a copy of the following documents without leave of the Court—
(a)affidavits;
(b)exhibits to affidavits;
(c)witness statements;
(d)expert reports, including those filed pursuant to Order 33 or Order 44 of these Rules; and
(e)written submissions, outlines of argument and chronologies.
(3)Paragraph (2) does not apply to a document that has been—
(a)read or relied on in open court; or
(b)relied on in an application determined without a hearing.
(4)No person may inspect or obtain a copy of a document which the Court has ordered remain confidential.
(5)A person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary, or in the case of a document filed in a proceeding in the Court of Appeal, the Registrar of the Court of Appeal, ought to remain confidential to the parties.
Rule 28.05 in its current form was introduced on 1 October 2021.[20]
[20]Supreme Court (Chapter I (Inspection and Affidavits) Amendment) Rules 2021, r 4.
Prior to that date, r 28.05 provided:
Inspection of documents
(1)When the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.
(2)Notwithstanding paragraph (1)—
(a)no person may inspect or obtain a copy of a document which the Court has ordered remain confidential;
(b)a person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties.
The current rule draws a distinction between those documents on the court file that may be inspected as of right[21] and those documents which may only be inspected with leave of the Court.[22] In respect of the latter category, leave to inspect is not required where the document has been read or relied on in open court or relied on in an application determined without a hearing.[23] However, a document, in any of the above categories, may not be inspected where the Court has ordered that it remain confidential.[24]
[21]Supreme Court (General Civil Procedure) Rules 2015, r 28.05(1).
[22]Ibid r 28.05(2).
[23]Ibid r 28.05(3).
[24]Ibid r 28.05(4).
Rule 28.05 in its current form is similar in some respects to r 2.32 of the Federal Court Rules 2011 (Cth). That rule permits a non‑party to inspect certain classes of documents listed in r 2.32(2), commonly referred to as ‘unrestricted documents’, as of right. Documents not listed in r 2.32(2), commonly referred to as ‘restricted documents’, may only be inspected with leave of the Court. Where the Court has made an order that a document remain confidential, inspection is not permitted without leave.
Rule 2.32 does not expressly deal with restricted documents that have been read or relied on in open court. However, in a number of cases the Federal Court has held that where an affidavit or submissions have been read or deployed in open court, there is a strong presumption that any member of the public should be given leave to inspect the document.[25]
[25]Castle v United States [2018] FCA 1079, [18] (Mortimer J); Baptist Union of Queensland – Carinity v Roberts (2015) 241 FCR 135, 142–3 [28]–[29], 143–5 [33]–[40] (Rangiah J); [2015] FCA 1068; Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465, [9]–[10] (Edelman J).
Rule 28.05 in its current form makes it clear that affidavits, exhibits and written submissions which are not read or relied on in open court may nonetheless be inspected with leave of the Court in appropriate circumstances.[26] A similar position was adopted in respect of the Federal Court rule in Oldham v Capgemini Australia Pty Ltd where Mortimer J (as her Honour then was) held:
An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person’s evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection.[27]
[26]Supreme Court (General Civil Procedure) Rules 2015, r 28.05(2). Also included are witness statements, expert reports, outlines of argument and chronologies.
[27](2015) 241 FCR 397, 401 [27]; [2015] FCA 1149.
The discretion to grant leave must be exercised in the interests of justice, having regard to all the relevant circumstances.
In International Litigation Partners Pte Ltd v Commissioner of Taxation, Jagot J held that the exercise of discretion involved the weighing of any real utility of disclosure as against the interest in preserving the confidential and personal nature of the documents.[28]
[28](2014) 317 ALR 708; [2014] FCA 671, 713 [14].
In The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6], Le Miere J, dealing with a similar rule,[29] held:
The court will exercise the discretion in the interests of justice, having regard to all the circumstances. The court will carry out a fact specific balancing exercise. The factors which the court will take into account will include the open justice principle, the potential value of the information in advancing the purpose and legitimate interest of the applicant, and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others.[30]
[29]Rules of the Supreme Court 1971 (WA) O 67B r 16.
[30][2021] WASC 210, [36].
Regarding the purpose for which an applicant seeks inspection it has been held that ‘a party who is engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation in which the applicant is involved’.[31] The Court will consider whether the purpose of the request for access ‘is forensically related to an issue that has arisen’ in the proceeding to which the applicant is a party.[32]
G.CONSIDERATION
[31]Rambal v Oswal [2014] WASC 86, [9] (Le Miere J).
[32]Burragubba v Queensland (No 2) [2018] FCA 1031, [33] (Robertson J).
Corplex seeks an order that the Confidentiality Order be set aside with respect to the documents it seeks to inspect.
As the Confidentiality Order itself was made ‘subject to further order’ with the additional proviso allowing access to the Court file ‘with leave of the Court’, there is no reason why the Confidentiality Order need be set aside if the Court considers that it is appropriate to grant Corplex leave to inspect and obtain copies of the documents it seeks.
The issue for the Court is whether it is in the interests of justice to grant Corplex leave to inspect and obtain copies of the documents having regard to all the relevant circumstances.
Of particular relevance here are the following circumstances which need to be weighed in the balance:
(a) the real utility of disclosure or the potential value of the information in advancing the purpose and legitimate interest of Corplex; and
(b) the interest in preserving the confidential and personal nature of the documents and any risks of harm which its disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others.[33]
[33]International Litigation Partners Pte Ltd v Commissioner of Taxation (2014) 317 ALR 708; [2014] FCA 671, 713 [14] (Jagot J); The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 210, [36] (Le Miere J).
Given Corplex’s concession that it was content to proceed on the basis that none of the documents it seeks to inspect were read or relied on in open court, considerations of open justice do not arise.
Real utility or potential value of disclosure in advancing Corplex’s purpose and legitimate interest
In circumstances where carriage of the ITM Proceeding has shifted from QBE to Final Stop and back to QBE, Corplex is entitled to know whether the case is being prosecuted against it on a proper basis.
I consider that the documents Corplex seeks are forensically related to issues that have arisen in the ITM Proceeding namely whether the continued conduct of the ITM Proceeding is an abuse of process and whether QBE’s right of subrogation has been irrevocably waived or otherwise extinguished.
I accept Corplex’s submission that QBE’s motivation for its decision to discontinue the proceeding in September 2022, and to resume conduct of it in October 2023, is relevant to the abuse of process issue and that the documents Corplex seeks are likely to contain evidence of communications between Final Stop and QBE that will shed light on QBE’s motivation for deciding to discontinue the ITM proceeding.
I also accept Corplex’s submission that the documents Corplex seeks are relevant to the issue of whether the execution and performance of the 2018 Deed, and in particular the legal consequence of QBE agreeing to Final Stop ‘assuming the conduct’ of the ITM Proceeding, had any effect on or consequence for QBE’s right of subrogation.
In reaching these conclusions I do not express any view on the strength of Corplex’s claims concerning abuse of process or waiver or extinguishment of QBE’s right of subrogation. Those issues will be separately determined. I consider, however, that the documents sought by Corplex are forensically related to those issues and that Corplex has a legitimate interest in inspecting those documents.
Preserving confidentiality in the documents and the risks of harm which disclosure may cause
The Confidentiality Order expressly restricts access to the entire Court file. QBE’s purpose in seeking the Confidentiality Order was to conceal from Corplex and the other defendants in the ITM Proceeding the fact that a dispute had arisen between QBE and Final Stop concerning the terms of the 2018 Deed. The Confidentiality Order therefore prevented inspection of all documents, even those that would otherwise be available for inspection as of right.
However, following the making of the Confidentiality Order, Corplex has not only become aware of this proceeding, it has obtained (by consent of QBE) a considerable number of documents filed in the proceeding including pleadings, transcripts and documents referred to in pleadings. Corplex having obtained these documents, it is difficult to see why the affidavit material and submissions directed to the issues disclosed on the pleadings should remain confidential.
Neither QBE nor Final Stop have identified any risk of harm which disclosure may cause to the maintenance of an effective judicial process or the legitimate interests of the owner of the information or others. Final Stop did not seek to be heard in opposition to Corplex’s application. QBE has not identified or tendered any evidence as to any specific harm it says it would suffer if Corplex is granted access to the documents sought.
QBE has not established that any of the documents Corplex seeks are the subject of client legal privilege. QBE’s reference to ‘common interest privilege as between Final Stop and QBE’ and its reliance on s 122(5)(c) of the Evidence Act 2008 are misplaced. That provision does not confer client legal privilege on parties with a common interest relating to a proceeding. It deals with a situation where existing client legal privilege is not lost. A discrete basis for conferring privilege must exist before this provision can have any application.[34]
[34]Timbercorp Finance Pty Ltd v Tomes [2019] VSC 445, [47]–[48] (Lansdowne AsJ).
I do not accept QBE’s submission that disclosure of the documents to Corplex would cause Final Stop and QBE irredeemable prejudice of precisely the type that actuated Elliott J in making the Confidentiality Order. As described above, the Confidentiality Order was intended to conceal from Corplex and the other defendants in the ITM Proceeding the fact that a dispute had arisen between QBE and Final Stop concerning the terms of the 2018 Deed. The Confidentiality Order was made with the consent of the parties and Elliott J did not provide reasons as to why it was made. In circumstances where Corplex is now well aware of this proceeding and has already obtained the pleadings and other documents referred to above it cannot be said that disclosure of the documents Corplex now seeks would cause Final Stop and QBE irredeemable prejudice of precisely the type that actuated Elliott J in making the Confidentiality Order.
Having regard to the relevant circumstances referred to above, on balance, I consider that Corplex should be granted leave to inspect and obtain copies of the particular documents it seeks. I will grant leave to Corplex to inspect and obtain copies of the particular documents sought in its application.
H.ORDERS
I will make an order granting Corplex leave to inspect and obtain copies of the following documents:
(a) affidavit of Tina Brandi dated 4 October 2022;
(b) affidavit of Gregory Phillip King dated 3 October 2022;
(c) affidavit of David Brandi dated 10 November 2022;
(d) affidavit of Matthew Peter McDonald dated 27 January 2023;
(e) affidavit of Travis Kemp dated 21 February 2023; and
(f) affidavit of David Brandi dated 24 February 2023;
(g) the exhibits to the affidavits referred to in (a)–(f) above;
(h) outline of submissions of QBE dated 22 February 2023; and
(i) submissions in reply of Final Stop dated 7 March 2023.
I will hear the parties on the question of costs.
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