Global Smart Cities Pty Ltd v City of Wanneroo [No 3] - [2023] WASC 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GLOBAL SMART CITIES PTY LTD -v- CITY OF WANNEROO [No 3] [2023] WASC 395
CORAM:   HOWARD J
HEARD:   9 OCTOBER 2023
DELIVERED          :   13 OCTOBER 2023
FILE NO/S:   CIV 1493 of 2022
BETWEEN:   GLOBAL SMART CITIES PTY LTD
Plaintiff
AND
CITY OF WANNEROO
Defendant

Catchwords:

Practice and procedure - Pre action discovery - Interested non-Parties sought confidentiality regime - Reasons published as to why a confidentiality order should be imposed - Parties and Interested non-Parties directed to confer on form of confidentiality orders - Subsequent application then made for Judge to disqualify himself because of apprehended bias - Alleged denial of procedural fairness - Subsequent application refused

Legislation:

Nil

Result:

Interested non-Parties Application allowed
Confidentiality regime imposed
Plaintiff’s subsequent Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr D H Solomon
Defendant	:	Mr S D Hubbard
First interested non-party	:	Mr R P Camm
Second interested non-party	:	Mr D J Pratt
Third interested non-party	:	Ms V A Bennett

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	DLA Piper Australia - Perth
First interested non-party	:	Camm & Associates
Second interested non-party	:	McVay Bates & Associates
Third interested non-party	:	Bird and Bird

Case(s) referred to in decision(s):

AW v Rayney [2010] WASCA 161
Civic Video Pty Ltd v Patterson [2013] WASCA 107
Global Smart Cities Pty Ltd v City of Wanneroo [2023] WASC 366
Leighton Contractors v Public Transport Authority of Western Australia [No 7] [2009] WASC 218
Naidoo v Williamson (2008) 37 WAR 516

HOWARD J:

Introduction

On 27 September 2023 I published reasons[1] (my earlier reasons) in favour of the imposition of a confidentiality regime before certain documents (Disputed Documents)[2] were inspected or provided in a non‑masked form to the plaintiff (GSC). These reasons should be read with my earlier reasons; I have used the same defined terms.
[1] Global Smart Cities Pty Ltd v City of Wanneroo[2023] WASC 366.
[2] Defined at [10] of [2023] WASC 366.
The procedural history which led to the hearing before me on 18 September 2023 (and the publication of my earlier reasons on 27 September 2023) has mostly been recited in my earlier reasons.
There are three additional matters to note, which are now material.
The first is that on 13 September 2023, my chambers received a letter addressed to the Acting Master's chambers from the City's solicitors.
That letter stated that:
1.the City's counsel had handed non-masked copies of the City's documents to the Master during the hearing on 14 February 2023 - they are the documents which I referred to in [12] of my earlier reasons, being the documents D16, D17, D18, D19 and D20;
2.the City had not delivered copies of the Interested non‑Party[3] tenders to this Court - they being the documents I referred to in [10] of my earlier reasons - being D8, D10 and D11.
[3] Defined at [5] of [2023] WASC 366.
The 13 September 2023 letter then said:
3.Can you please advise if you would like us to deliver copies of the Non-Party tenders (which we hold in electronic form) to the Court for the Acting Master's review and, if so, by what mechanism?
4.We are advised that the Non-Parties and the Plaintiff are agreeable to this course, provided that the Non-Party tenders are provided in a manner which preserved their confidentiality and are for review of the Acting Master only.
The second is, as recorded in my earlier reasons at [22], I took from the City's counsel the Disputed Documents at the conclusion of the hearing on 18 September 2023. I considered them in preparing my earlier reasons.
Towards the conclusion of the hearing on 18 September 2023, I referred to the 13 September 2023 letter:
HOWARD J:   I'm sure I'm going to regret this. Mr Hubbard, was the letter you sent towards the end of last week to the court indicating that the parties had consented to your supplying the - the documents at - you didn't identify them this way, but the documents at 8, 9, 10, 11 and 64?
HUBBARD, MR:   Correct, yes.
HOWARD J:   And would that then also - so you have discovered that document that's at Mr Hicks' January 2023 affidavit at 4.3.
HUBBARD, MR:   We have, your Honour, informally.
HOWARD J:   But you have not - - -
HUBBARD, MR:   It hasn't been the subject of a supplementary affidavit of discovery.
HOWARD J:   And - but no inspection has been given.
HUBBARD, MR:   Correct.
HOWARD J:   And - - -
SOLOMON, MR:   Is that in the file you have given the court?
HUBBARD, MR:   Yes, it is.
SOLOMON, MR:   Okay.
HUBBARD, MR:   Yes.
HOWARD J:   And so that would be - in addition to those 8, 10, 11 and 64, that could go into a folder, assuming that the parties were content for that to go to the court.
HUBBARD, MR:   Yes.
SOLOMON, MR:   I am, your Honour. It's always the position that if the court wishes to inspect the documents - I don't see them, but I have absolutely no objection to your Honour having the file.
HOWARD J:   Thank you. Thank you. I'm not sure about a wish, but it's really for the non-parties to confirm that they're content for me to take those.
PRATT, MR:   Yes, we are, sir.
HOWARD J:   Mr Hubbard, I won't ask you to do it immediately, but can I ask the City to supply a folder of those documents.
HUBBARD, MR:   Yes. Your Honour, I can do that right now, if it would assist. I have the folder here. Now, it's not - I haven't put a cover page on it, but - - -
HOWARD J:   That's okay. And does that have the other document from 4.3 of Mr Hicks' affidavit in it?
HUBBARD, MR:   Yes. Yes, it does, your Honour. I have marked the - that document with a tab marked FRA for financial risk assessment.
HOWARD J:   Okay. Okay. Well, what I will do is - against my better judgment, is I will take that folder. We will find the envelope of the redacted - or the unredacted documents.
HUBBARD, MR:   I can probably assist your Honour there as well. I have actually included those documents in this volume as well, to save you the hassle.
HOWARD J:   Thank you, Mr Hubbard. So I will take that as - I will just take it as an MFI, that bundle, and I will reserve the decision, hopefully not for very long, but I think it won't be - in all likelihood, it won't be this week, but I would be hopeful of it being sometime next week. The parties perhaps can let my chambers know if there's any times that are not available for them. I'm conscious that our school holidays start next week, which might be a thing for some people. Otherwise, I will adjourn the court.[4] (emphasis added)
[4] 18 September 2023 ts 51.
The third is that at the hearing on 18 September 2023, the plaintiff relied (among others) on its submissions dated 7 September 2023 which sought to incorporate (without repeating) earlier written submissions it had made on 16 February 2023. In the 16 February 2023 submissions the plaintiff had submitted:
25.[The plaintiff's] solicitors will not apply to see any confidential information, or provide an undertaking in that regard for the purposes of this application, on an interim basis as doing so may prejudice the client by requiring them to change legal representation.
26. The Court ought to examine all the Material unredacted and determine what, if any, part(s) is/are confidential by analogy to the process under Order 26 r 12(2) of the Rules of the Supreme Court 1971, which provides the Court with the power to inspect documents to determine any objection on the ground of privilege to the production or discovery of the documents. If any documents are held to be privileged, the other party will never see them. In analogous manner, the Court should review all of the Material and determine which part(s) of the Material is/are confidential; and then decide whether or not any of the confidential material ought to be redacted, according to whether or not redaction in the circumstances enables justice to be done to all parties, subject (if applicable) to appropriate undertakings by the representative of [the plaintiff] and its lawyers as referred to above, and (if applicable in due course) any expert witnesses.

Following my earlier reasons

As noted, on 27 September 2023 I published my earlier reasons and set the matter down for a later date to enable the parties to confer. At [44] - [45] I said:
[44]Prior to this hearing, I requested GSC and the Interested non‑Parties to provide minutes of the orders they were seeking. The Interested non‑Parties prepared a joint minute. That may provide the basis for conferral with GSC as to the form of the regime which should be imposed.
[45]I direct the parties to confer and if at all possible, agree on the form of the Orders to be made following these reasons, including as to costs. I will hear from them as to the form of the Orders and costs if they cannot be agreed.
On 29 September 2023 the plaintiff filed a Minute of Proposed Orders (29 September 2023 Minute) in the following terms:
1.The Honourable Justice Howard disqualify himself from making orders pursuant to the published reasons being [2023] WASC 366 ('Reasons') or any further involvement in the matter by reason of an apprehension of bias.
2.The applications heard on 18 September 2023 and the subject of the Reasons be listed before another Judge for directions and re‑hearing.
3.A certificate be issued to each party and each of the Interested Non‑Parties referred to in the Reasons under s. 14(1)(c) of the Suitors' Fund Act 1964.
There were short submissions which accompanied the 29 September 2023 Minute (plaintiff's 29 September 2023 Submissions).
From the plaintiff's 29 September 2023 Submissions, the first 'apprehension of bias' is said, as I understand it, to arise from the following:
1.before publishing my earlier reasons I did not permit the plaintiff's lawyers to see the Disputed Documents; and I should have imposed a confidentiality regime on the plaintiff's solicitors and then allowed them to make submissions concerning the confidentiality of the documents in closed court;[5]
2.in not implementing that procedure, I did not afford the plaintiff procedural fairness by denying it the opportunity to make submissions on the exclusion of the plaintiff's officers;[6]
3.the plaintiff has not been able to make submissions before the publication of my earlier reasons as to why that restriction should be imposed on the plaintiff with respect to the Disputed Documents;[7]
4.the plaintiff was not able to challenge anything in my earlier reasons by making submissions about appropriate orders concerning a confidentiality regime.[8]
[5] Plaintiff's submissions 29 September 2023 [3].
[6] Plaintiff's submissions 29 September 2023 [5].
[7] Plaintiff's submissions 29 September 2023 [5].
[8] Plaintiff's submissions 29 September 2023 [8.2].
As may be seen, essentially the plaintiff complains that I denied it procedural fairness in publishing my earlier reasons,[9] without implementing the procedure I refer to above.
[9] Plaintiff's submissions 29 September 2023 [10].
The plaintiff then contends - if I were to now adopt that procedure - I ought disqualify myself from its hearing on the basis that I have pre‑judged the issue by the publication of my earlier reasons.[10]
[10] Plaintiff's submissions 29 September 2023 [10].
It may be seen that there is dissonance between order 1 sought in the 29 September 2023 Minute and the submissions made in the plaintiff's 29 September 2023 Submissions.
On the plaintiff's 29 September 2023 Submissions, the question of pre‑judgment would only arise if I now proposed to adopt the procedure the plaintiff says I ought to have adopted.[11]
[11] Plaintiff's submission 29 September 2023 [10].

Denial of procedural fairness

As noted, the (principal) gravamen of the plaintiff's complaint following my earlier reasons is that I have denied the plaintiff procedural fairness.
Ordinarily, if a primary judge has denied a party procedural fairness in the course of deciding a matter, then it would be for an appeal court, or possibly, a review court on some prerogative writ, to assess that complaint and set aside the primary decision if the party was denied procedural fairness. It is perhaps unusual that a primary decision maker comes to consider whether they have denied a party procedural fairness.
In my judgment, however, and for the reasons which follow, I have not denied the plaintiff procedural fairness as:
1.the plaintiff consented to the procedure I adopted (via the three occasions I identify at [6], [8] and [9] above), with knowledge that its solicitors would not see the Disputed Documents;
2.the plaintiff at no time suggested the procedure it now says I ought to have adopted;[12]
3.while no-one on the plaintiff's side has yet to see the Disputed Documents, the plaintiff was not relevantly denied an opportunity to be heard on the commercial sensitivity of the Disputed Documents.
[12] See for eg. 9 October 2023 ts 64.
Further, if, against my assessment, I have denied the plaintiff procedural fairness, then, in my view, practically the plaintiff has lost nothing as:
1.the procedure it now says I ought to have adopted will, effectively, be adopted by the imposition of the confidentiality regime which allows the plaintiff's solicitors to see the Disputed Documents in full; and
2.consistently with the authorities (I identify in [30(5)] and [43(6)] of my earlier reasons) the plaintiff has liberty to apply to this Court for a variation of the regime as the matter progresses.
With great respect, although it may well be the subject of a judgment in another place, I do not accept at this point that it can be sensibly argued that the plaintiff was in any way denied procedural fairness.
As noted, Mr Solomon for the plaintiff, in response to questions of whether the parties were content for the folder of Disputed Documents to come to me, said, and it bears repeating:
I am, your Honour. It's always the position that if the court wishes to inspect the documents - I don't see them, but I have absolutely no objection to your Honour having the file.[13]
[13] 18 September 2023 ts 51.
At the hearing on 9 October 2023, when Mr Solomon was asked about that exchange, he agreed that the plaintiff had consented to me inspecting the documents, but said:
SOLOMON, MR:   That's right. But that doesn't answer what the court then does as to how it deals with them having inspected them.
HOWARD J:   But there was no submission made at any stage that there should be some elongated procedure as you canvass in the last ground of written submissions, was there?
SOLOMON, MR:   I didn't - - -
HOWARD J:   You never suggested that to the court.
SOLOMON, MR:   I didn't know what you were going to do, with respect, your honour. From the way the debate went, I thought the case was going the other way. But counsel read things wrongly. I may have read the debate wrongly. And as I say, had it gone the other way, there is no procedural fairness, but - - -
HOWARD, J:   But just losing the matter doesn't mean you've been denied procedural fairness, Mr Solomon.[14]
[14] 9 October 2023 ts 60; see also 9 October 2023 ts 62 - 63.
I do not accept the statements to the effect the plaintiff did not know what I would do with the documents at face value.
In my view, objectively, the only reasonable conclusion which could have been reached by those at the Bar table (at the conclusion of the hearing on 18 September 2023) was that I would consider the documents without further recourse to them in the course of my reaching a decision.
The taking of the documents in the way I did, is consistent with the statement of principle I quoted at [30(3)] of my earlier reasons from the Court of Appeal in Civic Video Pty Ltd v Patterson [2013] WASCA 107 [29].
In support of the submission that I had denied it procedural fairness, the plaintiff relied heavily on the Court of Appeal decision in AW v Rayney [2010] WASCA 161 and in particular the judgments of McLure P [70] - [72] and Buss JA (as he then was) at [152] - [156].
For example, the plaintiff relied on the following statements by McLure P [70] - [71]:
… there are very significant disadvantages in the procedure adopted by the magistrate, not only to the party who was deprived of access to relevant evidence and submissions but to the court … If adopted, any redactions must be confined to the absolute minimum essential to ensure the protection of the communications claimed to be privileged. That did not occur in this case with the consequence that the appellant was denied procedural fairness.
… the appellant should not have been excluded from any hearings and the parties should have been given the opportunity to make closing submissions to reflect the evidence adduced at the hearing and on the subject of the non‑disclosure of the names of the third parties. These also constitute denials of procedural fairness.
The plaintiff essentially contended that those statements of principle governed this case.[15]
[15] 9 October 2023 ts 69.
Although it was not accepted by counsel for the plaintiff,[16] the statements made by their Honours in the relied-upon paragraphs were made in the context of the particular procedure which the magistrate had adopted and which was set out, for example, in the judgment of McLure P at [15], [67], [68].
[16] 9 October 2023 ts 66 - 69.
That is, their Honours were assessing a procedure by which (some of) the supporting evidence and submissions made by Mr Rayney were not given in full to AW and where the court was effectively closed on occasions to AW.
Again this was not accepted by the plaintiff,[17] but I do not understand that what was in dispute in AW v Rayney was the magistrate's considering the underlying communications themselves over which privilege was claimed without showing them to AW.
[17] 9 October 2023 ts 68 - 69.
That is, I read AW v Rayney and the paragraphs relied upon by the plaintiff, as not directed to the magistrate's consideration of the communications over which privilege is claimed, but rather the process by which the supporting evidence and submissions were not given, in full, to AW.
I do not read the case as the Court of Appeal approving, necessarily, the Magistrate taking the underlying communications and considering them without showing them to AW. It simply was not, as I read it, the subject of the appeal, nor the statements made in the relied-upon paragraphs.
Further, practically, I do not understand how the plaintiff has been denied procedural fairness when the very result of the confidentiality order regime I am imposing provides the plaintiff's solicitor access to the documents that they suggest I should have allowed them.

Apprehended bias

Although it is not put exactly this way, it may be that the plaintiff asserts that I ought not make orders giving effect to my earlier reasons because of an apprehension of bias because I had (earlier) denied the plaintiff procedural fairness.
That would be an effective bifurcation of the applications I heard on 18 September 2023, and determined by my earlier reasons.
It seems to me, with respect, that the 29 September 2023 Minute is quite misconceived. It will be for the plaintiff, in the fullness of time and in another forum, to agitate, if it so wishes, the question of whether I denied it procedural fairness, or made orders from a position of apprehended bias.
There was no complaint that there was any apprehension of bias on my part at any time up until after the delivery of my earlier reasons.
If it is said that I have pre-judged the orders to be made because of my earlier reasons, that is not conceptually the sort of pre‑judgment to which apprehended bias is directed.

Rather, any 'pre‑judgment' of the orders to be made flows from the reasons I have delivered about which there was no, and is no, suggestion of an apprehension of pre‑judgment.
I suggest, with respect, that it is nonsensical to suggest that a decision maker approaches consequential orders, following the delivery of reasons, in any way that could relevantly be said to be pre‑judging some of the matters to be determined in the orders.
What the plaintiff seeks, essentially, is a 'do-over'[18] before another Judge sitting at first instance.
[18] In golfing parlance this is called a 'Mulligan'. The Macquarie Dictionary (6th ed) defines a 'Mulligan' as: 'a shot replayed without penalty, permitted only in unofficial games.' Unsurprisingly, it does not have an equivalent in Court procedures.

The confidentiality regime to be imposed

As noted, in my earlier reasons at [44] and [45] I had identified that the joint minute prepared by the Interested non-Parties may serve as the basis for conferral with the plaintiff.
Unfortunately, that did not occur.
For the purposes of the hearing on 9 October 2023, the Interested non‑Parties proposed a further minute which contained a confidentiality regime.
At the hearing on 9 October 2023, counsel for the plaintiff said he was unable to advance any submissions as to the form of the confidentiality regime as he had not seen the documents to which it would apply. I do not accept that is the case, nor a sensible stance to adopt. That, as will be seen below, was also given as the reason for the plaintiff's solicitors not conferring on the confidentiality regime.
I have considered the further joint minute. I consider that it is appropriate subject to the amendments which I have marked up on the attachment to these reasons. The Court would have been assisted by submissions from the plaintiff before formulating the terms of the regime. If there is any difficulty in the operation or effect of that order, then the parties can come back before the Court pursuant to the liberty to apply.

Conferral

It was not in dispute that in the lead-up to the hearing on 18 September 2023 and, then, again in the lead-up to the hearing on 9 October 2023 the plaintiff did not and would not confer with the Interested non‑Parties as to the terms of any confidentiality regime to be imposed if it was concluded that such a regime was appropriate.
Further, there was no conferral by the plaintiff on its 23 September 2023 Minute.
In 2023, it should be unnecessary to articulate why this Court expects and requires parties to confer.
Conferral, at least, is required by, and derived from, the Court expecting and requiring its officers:
1.to understand their paramount obligation to the Court (above and beyond any obligation owed to a client);
2.not to be a mouthpiece for their client and its wishes and desires; and
3.to comply with the obligation to narrow the issues truly in dispute to assist and allow for the proper and efficient administration of justice.
In this case, proper conferral on a confidentiality regime if one was to be ordered did not require any abandonment by the plaintiff of its opposition to the imposition of one at all. It would have assisted the Court.
Counsel for the plaintiff stated he was in no position to 'confer about the orders to be made' when,
I haven't seen the documents - the entire tender submissions, every punctuation mark in them has currently never been shown to us and masses of other material just completely redacted - I'm in no position … to make submissions about the orders that should be made.[19]
[19] 9 October 2023 ts 71.
When I asked counsel for the plaintiff why he did not participate in conferral with the other Interested non-Parties, he stated:
Conferral would be a complete and utter waste of time. They've got a decision of the court in their favour… in published reasons… I'm in no position to confer because… I don't know what's the material is that's going to be the subject of the order.[20]
[20] 9 October 2023 ts 72.
The plaintiff's counsel's explanation that there could be no conferral on the regime because he did not know the contents of the documents to which it would apply is unhelpful (to put it mildly) and wrong. That such a senior practitioner did not confer, and did not see there was an obligation to do so, is to be deprecated.

Extension of time

By Orders made 2 September 2022, the Master essentially allowed the plaintiff a period from inspection (12 October 2022: Order 3) until 31 October 2022 (Order 6) to commence proceedings before it would have to pay the City's costs of the pre-action discovery.
That period, it was common ground, ought be extended further as no‑one on the plaintiff's side has had access, yet, to the Disputed Documents.
I was told that Order 6 made 2 September 2022 has been extended and currently expires on 31 October 2023.
I would extend that time further so that Order 6 made 22 September 2022 be extended to a date 30 days after the plaintiff is allowed by the City to inspect the Disputed Documents. If there is any difficulty in the operation or effect of that order, then the parties can come back before the Court pursuant to the liberty to apply.

Costs

There are essentially the following applications for costs:
1.the costs reserved by the Master by his Orders made 25 May 2023 - those costs being between the plaintiff and the Interested non‑Parties on their application dated 2 February 2023;
2.the costs between the plaintiff and the Interested non‑Parties on the application recorded in [9] of my earlier reasons;
3. the application made by the plaintiff against the City as recorded in [13] of my earlier reasons; and
4.the costs of the plaintiff's application of 23 September 2023 made by its Minute between the plaintiff and the City and the Interested non‑Parties.
The Interested non‑Parties are, of course, not parties to this pre‑action discovery application.
Non-parties may be awarded costs pursuant to the principles adopted in Naidoo v Williamson (2008) 37 WAR 516 [42] (Steytler P, Pullin JA & Murray AJA) and the cases cited therein, and Leighton Contractors v Public Transport Authority of Western Australia [No 7] [2009] WASC 218 [62] - [67] (especially the observations approved of in [66] re the 'exceptional' threshold) (Le Miere J) and the cases cited therein.
It seems to me in this case that the Interested non‑Parties should be treated essentially as though they were parties in this action from the time that they agitated the imposition of a confidentiality regime.
To my observation, at least, the contest between the plaintiff and the Interested non‑Parties bore all of the hallmarks of inter partes litigation (I say as neutrally as possible). And, it seems to me that they ought to be treated as such.
Taking a broad brush, I treat both the costs reserved by the Master on 25 May 2023 and of the application made by the Interested non‑Parties as recorded in [9] of my earlier reasons as part of the one whole.
I consider there should be no award of costs on the costs reserved on 25 May 2023. Although it may be said that the plaintiff was successful in resisting that part of the application, in substance it was a sub‑application to the broader application for the imposition of a confidentiality regime which was ultimately successful.
I would award the Interested non‑Parties their costs of their application following 25 May 2023 up to and including the publication of my earlier reasons.
As to the City's costs, I would not make a further order as to the City's costs up to the publication of my earlier reasons. In my view, Orders 5 and 6 made by the Master on 2 September 2022 remain appropriate up to the publication of my earlier reasons.
In relation to the 29 September 2023 Minute, I order that the plaintiff pay the City's and the Interested non‑Parties' costs. I note that no party sought a special costs order.

Annexure A to [2023] WASC 395

IN THE SUPREME COURT OF WESTERN AUSTRALIA

HELD AT PERTH

CIV 1493 of 2022

BETWEEN:

GLOBAL SMART CITIES PTY LTD Plaintiff

(ACN 615 544 637)

and

CITY OF WANNEROO Defendant

(ABN 64 295 981 165)

MINUTE OF PROPOSED CONSENT ORDER

Date of Document:      September 2023
Filed on behalf of:  The Interested Non-Parties
Date of Filing:  6 October 2023

Prepared by:

Bird & Bird  Telephone:     +61 2 9226 9888
Level 22  Facsimile:      +61 2 9226 9899
25 Martin Place   Reference:     CLAGR.0015
SYDNEY NSW 2000  Email:          [email protected]

PURSUANT TO ORDER 43, RULE 16 AND BY CONSENT, it is ordered that:

The documents identified as Confidential Materials in Schedule 1 to the undertaking attached to these Orders be kept confidential and not be disclosed save to the extent it is reasonably necessary to refer to their contents in the course of evidence and submissions.
Subject to any further order, access to the Confidential Materials, including inspection of any Confidential Materials discovered by the Defendant, be restricted to the following (Authorised Persons):
(a)judicial officers and employees of the Court; and
(b)subject to each individual first signing an undertaking in the form of the attached undertaking (a copy of which will be retained only by the solicitors for the parties and the solicitors for Claude Outdoor Pty Ltd, Natsales Advertising Pty Ltd and Muscara Holdings Pty Ltd (Interested Non-Parties)), to:
(i)the external solicitors and counsel for the parties to the proceedings in CIV 1493 of 2022 or any appeal therefrom or fresh proceedings brought against the defendant;
(ii)the experts or external advisors engaged by the parties to the proceedings in CIV 1493 of 2022 or fresh proceedings against the defendant, for the purpose of providing evidence in the proceedings in CIV 1493 of 2022 or fresh proceedings brought against the defendant, or otherwise assisting the parties in the proceedings, or in fresh proceedings brought against the defendant who have been approved in writing by each Interested Non-Party or its solicitors;
(iii)such other individuals nominated by one or more of the parties and approved in writing by each Interested Non-Party or its solicitors.
With the exception of ~~the~~ judicial officers or employees of the Court, subject to the Authorised Persons keeping a register of the names of the secretarial or administrative assistants to whom the Confidential Materials are distributed, the secretarial or administrative assistants of Authorised Persons instructed by Authorised Persons to undertake secretarial or administrative work for the purposes of the proceedings in CIV 1493 of 2022 or any appeal therefrom or fresh proceedings brought against the defendant, or copying personnel instructed by Authorised Persons to undertake photocopying for these purposes, ~~of the proceeding~~ are specifically excluded from the requirement to sign an undertaking as provided by order 2(b).
Any document (including witness statements, affidavits, expert reports or drafts) filed by a party or produced by an expert retained by or on behalf of a party in the proceedings or fresh proceedings brought against the defendant, which relies on or refers to any of the Confidential Materials (in whole or in part), shall be kept confidential and kept in a sealed envelope on the Court file, and access to the document shall be restricted to the Authorised Persons.
A note be placed on the Court file noting for the attention of any Court officer receiving the file that documents kept on the Court file in accordance with order 4 should be kept confidential and should not be disclosed to any non-party without the consent of the Interested Non-Parties or an order of the Court.
The Confidential Materials, including any part of the Confidential Materials referred to in or attached to a document filed by a party or report produced by an expert, not be read in open court.
The parties have liberty to apply on notice of at least 2 working days to the other party or parties and to the solicitors for the Interested Non-Parties.
~~The plaintiff pay the Interested Non-Parties' costs to be taxed if not agreed.~~

………………………………….. ………………………………..
Solicitors for the Plaintiff Solicitors for the Defendant

………………………………….. ………………………………..
Solicitors for Muscara Holdings Pty Ltd Solicitors for Claude Outdoor Pty Ltd

…………………………………..
Solicitors for Natsales Advertising Pty Ltd

GLOBAL SMART CITIES PTY LTD -V- CITY OF WANNEROO

SUPREME COURT OF WESTERN AUSTRALIA
PROCEEDING NO. CIV 1493 OF 2022

CONFIDENTIALITY UNDERTAKING

I, [INSERT NAME], [INSERT ROLE], of [FIRM NAME] [INSERT ADDRESS], as a condition of obtaining access to confidential materials listed in Schedule 1 (Confidential Materials) and to the confidential information contained within those materials (Information), in connection with Supreme Court of Western Australia proceedings no. CIV 1493/2022 (the Proceedings), undertake to the Court and to [INSERT NON-PARTY] that unless [INSERT NON-PARTY] agrees or the Court otherwise orders:

Subject to clause 3, I will keep the Confidential Materials and the Information confidential at all times, including any notes, records, memoranda or other documents (including electronic versions thereof) created by me that reproduce the Confidential Materials or Information.
I will use the Confidential Materials and the Information only for the purposes of the Proceedings, including any appeals that may arise from the Proceedings.
I will not disclose the Confidential Materials, Information, or any notes, records, memoranda, or other documents, (including but not limited to any electronic versions thereof) created by me incorporating or referring to, or derived directly or indirectly from, the Confidential Materials, or Information to any person, other than to:
a)an external lawyer engaged by the Plaintiff (including counsel) who has first signed and provided to solicitor for the Defendant and the solicitor for [INSERT NON-PARTY] an undertaking in the same form as this undertaking;
b)an external advisor engaged by the Plaintiff who has obtained the written approval from [INSERT NON-PARTY] or the solicitors for [INSERT NON-PARTY] to access the Confidential Materials or Information and who has first signed and provided to solicitor for the Defendant and the solicitor for [INSERT NON-PARTY] an undertaking in the same form as this undertaking;
c)another person who has obtained the written approval from [INSERT NON-PARTY] or the solicitors for [INSERT NON-PARTY] to access the Confidential Materials or Information and who has first signed and provided to solicitor for the Defendant and the solicitor for [INSERT NON -PARTY] an undertaking in the same form as this undertaking;
d)to the Court or any of its employees; or
e)as required by law.
If I am required to disclose the Confidential Materials or Information pursuant to paragraph 3(e) above, I will take reasonable steps to preserve the confidentiality of the Confidential Materials or Information disclosed and notify the solicitor for [INSERT NON-PARTY] as soon as possible of the disclosure.
If the Confidential Materials or Information (or any part of either) is to be used in evidence in the Proceedings, I will take all reasonable steps to preserve the confidentiality of the Confidential Materials or Information including (but not limited to):
a)labelling any part of any affidavit or annexure or exhibit which uses the Confidential Material or Information (or any part of either) clearly as containing material subject to this undertaking; and
b)seeking non-publication or other appropriate orders such as closure of the Court to persons who have not signed this undertaking.
I will promptly notify the solicitors for the Defendant and the solicitors for [INSERT NON-PARTY] if I become aware of any unauthorised use or disclosure of the Confidential Materials, Information, or any notes, records, memoranda or other documents (including but not limited to any electronic versions thereof) created by me or any other person who has also provided an undertaking in this form, that reproduce the Confidential Materials or Information.
At the end of the Proceedings (or any appeal from the Proceedings), I will, at the election of [INSERT NON-PARTY], take steps to return or delete or destroy all copies of the Confidential Materials or Information in my possession and provide written confirmation to [INSERT NON-PARTY] that I have complied with this obligation.
This undertaking is irrevocable and continuing, and survives the resolution or determination of the Proceedings and any further legal proceedings (including any appeal) arising from or related to the Proceedings.

Signature __________________________________

Capacity__________________________________
Date of signature __________________________________

SCHEDULE 1 – CONFIDENTIAL MATERIALS

THE DISPUTED DOCUMENTS AS DEFINED IN GLOBAL SMART CITIES PTY LTD V CITY OF WANNEROO [NO 2] WASC 366 [10] ~~[INSERT DESCRIPTOR OF CONFIDENTIAL MATERIALS]~~

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
13 OCTOBER 2023