JS McMillan Pty Ltd v Commonwealth of Australia

[1997] FCA 593

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 453 of 1997
)
GENERAL DIVISION	)

BETWEEN:	J.S. McMILLAN PTY LIMITED First Applicant
PIRIE PRINTERS HOLDINGS PTY LIMITED ACN 008 496 893 Second Applicant
IMSEP PTY LIMITED trading as NATIONAL CAPITAL PRINTING ACN 008 656 488 Third Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent
THE HONOURABLE DAVID JULL MP MINISTER FOR ADMINISTRATIVE SERVICES Second Respondent

JUDGE(s):	EMMETT J
PLACE:	SYDNEY
DATED:	27 JUNE 1997

EX TEMPORE REASONS FOR JUDGMENT

Two notices to produce have been called, being notices to produce issued by the solicitors for the applicants.  The first is for the production of responses to the request for tender lodged by Moore Business Systems Australia Limited, Sands Print Group and Union Offset and Better Printing.

Objection to production of those documents was made by the respondents on the ground that they are not relevant to the proceedings.  Mr Bouris, solicitor for Moore Business Systems also appeared and objected to the documents being made available to the applicants on the ground that they contain highly confidential commercial information, the disclosure of which to the applicants could - and most likely would be - prejudicial to Moore Business Systems.

The basis on which it was contended that the documents might be relevant is the allegation contained in paragraph 8(b) of the statement of claim.  The allegation there made is that the tender process was conduct in trade or commerce which was or became misleading or deceptive or likely to mislead or deceive in that it was not being genuinely pursued with the bona fide objective of securing the highest and best performing bids from tenderers capable of performing the work and contracts being tendered through an open tendering system.

That, of course, is a serious allegation to be made but at present there is no application by the respondents that that question should not be tried at the hearing which has been fixed for next Monday.  Particulars of that allegation include in paragraph (v) that at least some of the tenderers who have been short-listed would not be capable of performing the work for which they have tendered.  Counsel for the applicants indicates that the documents sought to be produced are relevant to that allegation.

As I understand the matter, however, the documents are sought because it may be that they would be shown to be non-conforming with the tender.  As I read the allegation in paragraph (v), however, it is not that the tenders are non-conforming but that the tenderers would not be capable of performing the work for which they have tendered, the implication being that they have tendered for the work contemplated by the tender itself.

Mr Walton was unable to put it any higher than that the documents might show something which is not alleged.  In those circumstances I am not prepared at the moment to require production of the documents.  However, it is conceivable that they might be shown to be relevant and, accordingly, I propose to stand over the notices to produce to the hearing on Monday, 30 June and reserve to the applicants the right to call again if they are so advised and I will rule on the matter at that stage.  I should indicate, however, that if I do so, it will only be on terms that access be limited in the way which I will describe in relation to the second notice to produce.

The second notice to produce calls for production of unexpurgated copies of documents which are annexures to an affidavit filed on behalf of the respondents and for production of a document which was exhibited to that affidavit.  The rules clearly require that copies of the exhibit be served with the affidavit.  The only reason advanced as to why a copy of the exhibit was not served is that it contains confidential information.  I have also been informed that the only reason why expurgated versions of annexures D, E and F to Mr Lee Archer's affidavit were annexed is because the balance of the contents of those documents is also confidential.  No other basis for resisting the notices to produce was advanced on behalf of the respondents.

Mr Bouris, on behalf of Moore Business Systems, however sought to be heard in relation to an application to set the notices to produce aside.  He indicated that his concern was simply that the material which would otherwise be made available is confidential and highly sensitive from a commercial point of view, such that access being given to the applicants would be prejudicial to his client.

Mr Bouris also endeavoured to persuade me that the material may not be relevant to the proceedings.  It is patently relevant in so far as the allegation made in paragraph 8(b) is concerned.  The material relates to the decision as to the short list of tenderers.  Accordingly, in circumstances where both the applicants and the respondents consider the material is relevant, the contentions of a stranger to the proceedings carry no weight.

However, I am mindful of the clear commercial interest which Moore Business Systems has in maintaining confidentiality in relation to their commercially sensitive material.  Accordingly, I propose to direct that access to the unexpurgated copy of the documents which are annexures D, E and F and the document which is marked BJLA Confidential, being the exhibit to the affidavit of Mr Brian Lee Archer, be limited to counsel for the applicants and Mr Ryckmans who is the solicitor actually instructing them in these proceedings.

Mr Bouris pointed out that the firm of which Mr Ryckmans is a partner, P.A. Somerset & Co, may have been giving commercial advice to the applicants in relation to the tender process.  It is clear that, by my limiting access as I have indicated, both counsel and Mr Ryckmans would be bound by an obligation not to use the material otherwise than for the purposes of the conduct of this litigation.  Mr Bouris suggested that that may not be sufficient protection because the possibility might arise whereby Mr Ryckmans' firm was engaged at a subsequent time in relation to the tender process such that, if he had the information, it would be difficult for him not to make use of knowledge which he had.

Mr Ryckmans, however, has indicated that he is prepared to give an undertaking to the court that he would not himself be involved in any future tender process that might be involved in relation to the matters which are the subject of these proceedings.  In circumstances where that undertaking is proffered, coupled with the obligation which would be binding upon counsel and the solicitor, it seems to me that Mr Bouris' legitimate concern is adequately provided for.

Accordingly, I propose to direct the respondents that they furnish to Mr Ryckmans by some time today, unexpurgated copies of the documents which are annexures D, E and F and a copy of the document which is exhibited and marked BJLA Confidential to the affidavit of Brian Lee Archer sworn 26 June 1997.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            27 June 1997

Counsel for the Applicant:	M. Walton
Solicitor for the Applicant:	P. A. Somerset & Co.
Solicitor for the Respondent:	Australian Government Solicitor
Solicitor for Moore Business Systems	Mallesons Stephen Jaques
Date of Hearing:	27 June 1997