Hadid, Albert Lenfest Communications Inc & Ors

[1995] FCA 1161

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 36 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:ALBERT HADID

Applicant

AND:LENFEST COMMUNICATIONS INC

First Respondent

GARY LENFEST

Second Respondent

BAIN CAPITAL MARKETS LIMITED

Third Respondents

WAYNE BURT

Fourth Respondent

AUSTRALIS MEDIA LIMITED
  Fifth Respondent

RODNEY PRICE
  Sixth Respondent

AND:LENFEST COMMUNICATIONS INC

Cross-Claimant

ALBERT HADID
  Cross-Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    13 DECEMBER 1995

REASONS FOR JUDGMENT

Before the Court is a notice of motion from the Secretary of the Department of Communication and the Arts to restrict access to material subpoenaed on behalf of the third and fourth respondents and served upon the Department on 23 October to the legal representatives of the parties only.  The material subpoenaed may generally be described as the applications and material submitted in support thereof to the

Department in connection with bids for class A and class B pay television licences.

During January 1993 the Australian Government invited bids from persons for these licences with an original closing date of 24 March 1993.  That date was ultimately extended until 28 April 1993 and in the result fifty-one bids were received from some thirty-eight bidders.  The application form required to be completed by persons lodging bids said, under the heading "Confidentiality":

"The information on this form will be treated as confidential except where necessary for the Authority and the Trade Practices Commission to fulfil their statutory duties in relation to the allocation of the licence or as otherwise required by law."

The Department itself has treated the bids as confidential, as indeed it was obliged to do, and the material has apparently been kept in a locked safe with very limited access.

On 3 April 1993, that is to say after the time for bids had closed, the then Minister for Communications issued a media release indicating that for reasons of commercial confidentiality the names of unsuccessful tenderers would not be revealed.  A subsequent release on 13 August also referred to confidentiality.
         Upon receiving the subpoena, letters have been sent to bidders seeking their attitude to access being provided under the subpoena.  Two bidders who have replied objected to any access being granted; three did not object to access being granted to the legal representative and one bidder did not object to whatever course the Department deemed appropriate.  A further bidder also indicated it did not object to access to information being granted to legal representatives, subject to confidentiality undertakings.  That bidder apparently no longer objects to access being granted.

It is said that disclosure of the information, which may be accepted as being commercially sensitive, could have adverse implications for the industry, and that the trust and confidence existing between the Commonwealth and commercial interests could be damaged.  The Secretary of the Department has said that he does not consider it would be in the public interest for the information to be produced to the parties or the persons associated with the communications industry or to experts engaged to advise the parties, although he has no concern about the information being provided to legal representatives.

In written submissions counsel for the Department drew my attention to the need for there to be a legitimate forensic purpose in the material being provided.  That purpose can be seen in the present case in terms of the computation of damages in the event that Mr Hadid was ultimately to succeed on liability, in that in part his damages depend upon calculations of likely income and expenditure.  In circumstances prior to the licenses becoming actually operative, it is likely that the material in the hands of the Secretary could assist one or other party in the case.  Which party of course it would assist would no doubt depend upon the contents of the information.

I would accordingly find that there is a legitimate forensic purpose in the documents being made available for inspection.  I accept also that the information is, of course, commercially sensitive and should be protected by a confidentiality order.  In the ordinary case, as with much of the other material which has already been produced for inspection in these proceedings, orders would be made that the material in question be kept confidential to the legal representatives and experts.  However, it is to the material being provided to experts that the Minister objects.

A question of balancing always arises when a claim for public interest immunity is made.  Generally, it will be necessary for there to be some evidence or other circumstances from which it can be inferred on the balance of probabilities that some harm will arise - in this case to the integrity of the bidding purpose, as is alleged.  In arguing for the protection of the bidding process, statements made after that process has closed will be irrelevant.  What is significant are the terms upon which the bids were made, not what may thereafter have been said by the Minister when the information had been received.

No doubt a stronger case might exist for the Minister if the relevant legislation had provided for confidentiality, as is the case with legislation in other areas.  But that is not suggested here.  The reality of the matter is that the bids were placed with the Minister on the basis that they would be kept confidential subject to the need where the Minister was required by law to produce them in other circumstances.

That qualification was apt to include a case of a subpoena, just as it was apt to include the specific cases of the Trade Practices Commission referred to in the bid document.  In the circumstances I do not think that a claim for public interest immunity is made out if material is obtained in circumstances where the government authority itself contemplates that there would be cases where the material would be provided to others under compulsion of law.  It is difficult to see how the public interest requires that the material not be produced in accordance with a court order.

However, because the material is confidential I would make an appropriate confidentiality order.  There may be objections which the Minister might take to particular experts if it were said that production of information to them might cause a commercial difficulty to people who have participated in the bidding process.

To enable any specific objection to be made I propose to make the following orders:

(1)I order the parties to the proceedings to provide to the Secretary of the Department or legal advisers the names and a short curriculum vitae of each of the experts presently employed, indicating which, if any, corporations the particular expert may have acted for in connection with pay television licence applications.  That material is to be provided within 48 hours of today, that is to say by 4.00 pm on Friday 15 December 1995.

(2)I direct the Minister or the Department to advise each of the parties as to whether there is a particular objection to the expert nominated.  That objection and details of it to be served upon the respective parties no later than 4.00 pm next Wednesday 20 December 1995.

(3)The matter to be stood over until Thursday 21 December 1995 at 9.30am.

I certify that this and the
preceding five (5) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  13 March 1996

Counsel and Solicitors       N Cotman instructed by

for Applicant:              Corrs Chambers Westgarth

Counsel and Solicitors       R Smith instructed by

for First and Second         Clayton Utz

Respondents:                

Counsel and Solicitors       J Nicholas instructed by

for Third and Fourth         Phillips Fox

Respondents:

Counsel and Solicitors       M Slattery instructed by

for Fifth and Sixth          Atanaskovic Hartnell

Respondents:

Counsel and Solicitors       E Wilkins instructed by the

for the Department of        Australian Government Solicitor

Communications and the
Arts:

Date of Hearing:            13 December 1995

Date Judgment Delivered:     13 December 1995