Golden Vision Biggera Waters GC Pty Ltd v Lendlease Funds Management Limited
[2021] QCAT 163
•4 May 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Golden Vision Biggera Waters GC Pty Ltd v Lendlease Funds Management Limited [2021] QCAT 163
PARTIES: GOLDEN VISION BIGGERA WATERS GC PTY LTD (applicant)
v
LENDLEASE FUNDS MANAGEMENT LIMITED (respondent)
APPLICATION NO/S:
RSL150-19
RSL026-20
MATTER TYPE:
Retail shop leases matter
DELIVERED ON:
4 May 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS:
1. Until further direction, the Electricity Cost Records to be disclosed to Golden Vision Biggera Waters GC Pty Ltd pursuant to the directions made 27 November 2020 (‘the Electricity Cost Records’) are to be disclosed only to Golden Vision Biggera Waters GC Pty Ltd’s solicitors or counsel and not to Golden Vision Biggera Waters GC Pty Ltd or any of its officers or personnel either by Lendlease Funds Management Limited or Golden Vision Biggera Waters GC Pty Ltd’s solicitors or counsel and used only for the purpose of the conduct of the proceedings RSL150-19 unless:
(a) Golden Vision Biggera Waters GC Pty Ltd and each of its officers or personnel to whom disclosure is proposed to be made sign and serve on Lendlease Funds Management Limited a confidentiality undertaking in terms of the undertaking annexed to the Application for miscellaneous matters filed 4 January 2021.
(b) each expert to whom disclosure is proposed to be made sign and serve on Lendlease Funds Management Limited a confidentiality undertaking in terms of the undertaking annexed to the Application for miscellaneous matters filed 4 January 2021.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – OTHER MATTERS – whether a confidentiality regime should be directed where commercially confidential documents directed to be produced
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62, s 122
APPEARANCES & REPRESENTATION:
Applicant:
Cooper Grace Ward
Respondent:
Minter Ellison
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 17 March 2021 I made directions in respect of an Application for miscellaneous matters filed 4 January 2021 seeking directions as to a confidentiality regime regarding documents to be disclosed pursuant to directions made 27 November 2020. At the time I did not publish reasons for my directions.
On 25 March 2021, a request for reasons was received. [1] These are my reasons.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122 (QCAT Act).
Golden Vision Biggera Waters GC Pty Ltd (‘the Tenant’) leases premises from Lendlease Funds Management Limited (‘the Lessor’) at the shopping centre known as Harbour Town. The Tenant sub-leases the premises to several sub-tenants. Various disputes have arisen between the parties. These proceedings commenced in mid - 2019 and directions have been made for pre-hearing steps to be performed including the delivery of witness statements. The Tenant requested disclosure of documents in the possession of the Lessor to allow it to finalise its statements of evidence including any expert reports.
On 27 November 2020 I made directions in respect of an Application for miscellaneous matters filed 31 August 2020 by the Tenant seeking production of ‘electricity invoices’ by the Lessor. After considering written submissions by the parties I directed that ‘unless otherwise ordered’ the Lessor was to produce to the Tenant ‘its records or provide information showing the cost to it of the electricity supplied to the Tenant at the premises the subject of the Notice of Dispute (Electricity Cost Records) for the period commencing 28 December 2018 to the date of the hearing of the Notice of Dispute’. I directed that the first tranche of Electricity Cost Records be produced by 11 January 2021.[2]
[2]QCAT Act, s 62(3).
Prior to the time for production, the Lessor sought directions as to a confidentiality regime regarding the Electricity Cost Records.[3]
[3]Application for miscellaneous matters filed 4 January 2021.
An incident occurred after submissions as to disclosure had been submitted but before the direction issued, which caused the Lessor to be concerned that the Tenant or its personnel may misuse the information if directed to be produced. Once disclosure was ordered the Lessor applied for further directions as to a confidentiality regime to address its concern that the Tenant or its personnel may not respect the implied undertaking to use the documents only for the purposes of the proceedings.
The parties filed submissions in response to directions and the date for initial production was deferred to 22 January 2021.[4] I made an interim order to allow Electricity Cost Records to be produced to the Tenant’s solicitors so that the substantive dispute could progress pending determination of the application for miscellaneous matters.[5]
[4]Directions made 7 January 2021 and 19 January 2021.
[5]Directions made 20 January 2021.
The Tenant opposed the imposition of a confidentiality regime. It contended that the Lessor could not rely upon the incident, being a without prejudice email sent by one of the Tenant’s personnel because it was without prejudice and in any event was withdrawn a short time later and further that the email had been misconstrued; that the usual implied undertaking to only use the documents for the purpose of the proceedings should be sufficient to ensure the Tenant and its personnel did not inappropriately use the information contained in the Electricity Cost Records; and that the Lessor was impermissibly seeking a further opportunity to make submissions in relation to the decided application for disclosure.
I am satisfied that further directions as to a confidentiality regime should be made.
The direction as to disclosure was expressly made ‘unless otherwise ordered’. The directions sought were to place express boundaries around the way with which the documents produced were to be dealt. The application is not an impermissible further opportunity to make submissions in relation to the decided application for disclosure. The disclosure direction itself foreshadowed that its terms may be re-visited or that additional directions may be sought.
Much of the submissions received related to whether or not I should have regard to the without prejudice email. It is not necessary for me to consider whether the without prejudice email can or should be relied upon in these circumstances or whether this falls within a relevant exception.
The Electricity Cost Records are likely to contain commercially sensitive confidential information. The confidential information is likely to not only relate to the parties to this proceeding but also a range of non-parties such as suppliers and at least indirectly other tenants.
Although there is an implied undertaking to only use information for the purposes of the proceedings, I am satisfied that it is appropriate to place express boundaries around such commercially sensitive documents and information to assist in protecting not only the Lessor’s rights but also non-parties’ rights. Whilst courts most commonly impose additional confidentiality regimes with caution and often where disclosure sought is between trade competitors, the procedure for a proceeding is at the discretion of the Tribunal[6] and it is not bound by practices or procedures applying to courts of record.[7]
[6]QCAT Act, s 28(1).
[7]Ibid, s 28(3)(b).
It is not difficult to foresee that in a large shopping centre, inappropriate use of commercially sensitive confidential information may have significant consequences. In these circumstances, I make directions as to a confidentiality regime.
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