Lighthouse Corporation Limited v Republica Democratica de Timor Leste (No 4)
[2023] VSC 363
•30 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S CI 2016 04287
BETWEEN:
| LIGHTHOUSE CORPORATION LIMITED (IBC 051 557) & ANOR (according to the Schedule of Parties) | Plaintiffs |
| and | |
| REPUBLICA DEMOCRATICA DE TIMOR LESTE & ANOR (according to the Schedule of Parties) | Defendants |
| (by original proceeding) | |
| AND BETWEEN: | |
| REPUBLICA DEMOCRATICA DE TIMOR LESTE & ANOR (according to the Schedule of Parties) | Plaintiffs |
| and | |
| LIGHTHOUSE CORPORATION LIMITED (IBC 051 557) & ORS (according to the Schedule of Parties) | Defendants |
| (by counterclaim) |
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JUDGE: | M Osborne J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2023 |
DATE OF JUDGMENT: | 30 June 2023 |
CASE MAY BE CITED AS: | Lighthouse Corporation Limited & Anor v Republica Democratica de Timor Leste & Anor (No 4) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 363 |
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CONFIDENTIALITY – Whether the Court should make confidentiality orders over certain documents – Whether confidentiality orders prejudice or present a risk to the administration of justice – Whether express undertaking required or whether implied obligation not to use documents for a collateral purpose is sufficient – Rights of inspection pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 – Harman v Secretary of State for the Home Department (1983) 1 AC 280 – Open Courts Act 2013 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs/ Defendants by counterclaim | Mr A Herskope of Counsel | Welner Lawyers |
| For the Defendants/ Plaintiffs by counterclaim | Mr P Solomon of His Majesty’s Counsel Mr Kay Hoyle of Senior Counsel | DLA Piper |
HIS HONOUR:
Introduction
By further amended summons dated 6 April 2023, the plaintiffs/defendants by counterclaim (‘Lighthouse’) seek orders pursuant to s 17 of the Open Courts Act 2013 (Vic) (‘Open Courts Act’)[1] that access to documents (‘Confidential Documents’) listed in a document headed ‘Index of Confidential Documents contained in exhibit AJ4 (‘AJ4 Index’) to the affidavit of Albert Jacobs sworn 5 August 2022’ (‘5 August 2022 Affidavit’), be restricted to:
(a) a justice of this Honourable Court (or their staff) (sic); or
(b) a barrister or solicitor retained to act for a party in this proceeding, or a party to this proceeding or any employee, servant or agent of any party provided that before there is any disclosure of any of the documents they have entered into an undertaking in the form set out in the annexure or otherwise in a form agreed between the parties to the proceeding.
[1]Open Courts Act 2013 (Vic) s 17 (‘Open Courts Act’).
Alternatively, Lighthouse seeks an ‘order for confidentiality’ of the Confidential Documents pursuant to the Court’s inherent jurisdiction.
Separately, it seeks orders pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) in respect of the 5 August 2022 Affidavit, exhibit AJ4 to that affidavit and the Confidential Documents.
The 5 August 2022 affidavit refers to 128 documents discovered by Lighthouse in the proceeding which are the subject of an objection to inspection on the grounds the documents are confidential. In fact, the number of documents is 129. Copies of the documents were provided to me at the hearing of this application accompanied by an index entitled ‘Lighthouse: Index of 129 documents’ (‘Document Index’).[2]
[2]The documents in the Document Index are listed in a different order to the order in which they appear in the AJ4 Index. However in each case they are accompanied by a document identification number with the result that it was not difficult to navigate between the two lists.
In addition to relying on the 5 August 2022 Affidavit, Lighthouse also relies on a further affidavit sworn by Mr Jacobs on 7 May 2023 (‘Confidential 7 May 2023 Affidavit’). This Confidential 7 May 2023 Affidavit was treated by the parties by agreement as confidential, without prejudice to any contention to the contrary advanced by the respondent to the application, the defendants/plaintiffs by counterclaim (‘RDTL’).
In addition, Lighthouse relies upon a written outline of submissions filed 7 May 2023 (‘Lighthouse Submissions’).
RDTL, relies upon two affidavits sworn by Liam Thomas Prescott (‘Mr Prescott’), a partner at the firm of DLA Piper Australia (‘DLA’) who has the care and conduct of this proceeding on behalf of RDTL, sworn 17 April 2023 and 24 May 2023 (respectively the ‘Prescott 17 April 2023 Affidavit’ and the ‘Prescott 24 May 2023 Affidavit’). RDTL also relies upon written outlines of submissions dated 9 September 2022 and 15 May 2023.
The Prescott 17 April 2023 Affidavit was filed by DLA on behalf of RDTL in the usual way. That step prompted a furious response by Lighthouse which contended that the filing of the affidavit on that basis was contrary to the terms of written undertakings and that as a consequence Lighthouse intended to bring proceedings for contempt against RDTL’s solicitors. RDTL and the solicitors denied that the filing of the Prescott 17 April 2023 Affidavit was contrary to the undertaking and otherwise denied that its filing constituted a contempt. Nevertheless, RDTL was content in the interim for the Prescott 17 April 2023 Affidavit to be treated as confidential and not be available for inspection by a person searching the court file pending the resolution of this application.
The content of the Prescott 17 April 2023 Affidavit and the matters which arise from the Prescott 24 May 2023 Affidavit are considered in more detail below.
Before turning to the application, it is helpful to set out some of the relevant background to the proceeding more generally.
The claims made in the proceeding
In Lighthouse’s amended statement of claim it alleges that:
(a) it is a fuel supplier which entered into a fuel supply agreement with RDTL on or about 22 October 2010 (‘Fuel Supply Agreement’) pursuant to which it agreed to supply RDTL with not less than six million litres of high speed diesel fuel per month over a six year period which agreement was varied on or about 18 and 26 November 2010;
(b) RDTL breached the Fuel Supply Agreement by refusing to deliver irrevocable letters of credit which were to be provided by way of payment for the high speed diesel no less than 20 days prior to the loading of the shipment of the fuel;
(c) on or about 19 August 2011, RDTL purported to terminate the Fuel Supply Agreement on the basis, inter alia, that Lighthouse had made various representations which relevantly related in part to Lighthouse’s experience and financial capacity to provide certain infrastructure contributions and to make provision for the supply of fuel;
(d) the purported termination by RDTL constituted a repudiation of the Fuel Supply Agreement which was accepted by Lighthouse on or about 25 October 2011;
(e) as a consequence of Lighthouse’s acceptance of that repudiation, Lighthouse lost the benefit of the Fuel Supply Agreement, the revenue that it would otherwise have received under that agreement as well as suffered loss and damage in an amount of in excess of USD300 million. Lighthouse also advances a claim for damages in the nature of a claim for wasted expenditure in the sum of USD739,856.
By way of defence, RDTL denies that it entered into the Fuel Supply Agreement and otherwise alleges that if it did enter into the agreement, it did so on the basis of a series of false representations made by or on behalf of Lighthouse.
It is unnecessary for the purposes of this application to recite the many alleged misrepresentations, save to observe that in general terms they relate to the experience and financial capacity of Lighthouse and were made on various occasions during the period from around early May 2010 to on or about 28 November 2010. RDTL pleads that as a consequence of those misrepresentations, on 19 August 2011, it was entitled to rescind the Fuel Supply Agreement (if it entered into it, which it denies), alternatively, that it is entitled to relief under the Trade Practices Act 1974 (Cth) (‘TPA’) and the Fair Trading Act 1999 (Vic) to the effect that the Fuel Supply Agreement is void and of no effect.
In Lighthouse’s amended reply dated 10 September 2021, Lighthouse responds to RDTL’s plea that it was entitled to rescind the Fuel Supply Agreement by pleading various matters in support of a plea to the effect that RDTL affirmed the Fuel Supply Agreement, or alternatively did not rescind it within a reasonable period of time or is otherwise estopped from rescinding the Fuel Supply Agreement.
Among the matters that Lighthouse relies upon in support of that plea is an allegation that by at least February 2011, Abel Guterres (‘Ambassador Guterres’), who was RDTL’s Ambassador to Australia in the period between 1 January 2010 and 1 September 2011, had in fact already formed the view by at least February 2011 that Lighthouse was not a company ‘of substance’. The particulars of that allegation refer to an email from Mr Jacobs to Ambassador Guterres dated 8 February 2011.
By way of a rejoinder filed by RDTL in response to Lighthouse’s reply, RDTL responds to that plea by referring to a number of further representations alleged to have been made by Lighthouse in the period between 14 November 2010 and 17 August 2011 which are also said to have been false. RDTL relies upon those matters in support of a plea to the effect that as a consequence of those further misrepresentations, RDTL was not aware of the true position in respect of Lighthouse or in a position to make an informed decision in respect of its dealings with Lighthouse. It pleads that as a consequence it did not affirm the Fuel Supply Agreement, is not estopped from rescinding the agreement and otherwise that it rescinded the Fuel Supply Agreement within a reasonable time.
Among the further representations relied upon by RDTL and referred to in its rejoinder are representations allegedly made on Lighthouse’s behalf by Mr Jacobs to the effect that Lighthouse had a commercial relationship with the Kulla Exim refinery and that Lighthouse along with its subsidiaries was a vested shareholder in the Kulla Exim refinery. The particulars of those representations comprise: an email from Mr Jacobs to Ambassador Guterres copied to, among others, the office of the then Prime Minister of RDTL dated 8 February 2011; emails from Mr Jacobs to Ambassador Guterres and Abrao Oliveira copied to, among others, the office of the Prime Minister dated 8 February 2011; and a letter from one Adem Rrustemaj to Ambassador Guterres dated 8 February 2011 which is attached to the email from Mr Jacobs to Ambassador Guterres and Abrao Oliveira dated 8 February 2011. Separately, RDTL relies upon a separate representation made by way of an email sent on Lighthouse’s behalf by one Sean Magee to Ambassador Guterres dated 9 February 2011 as to the total revenue of one of its refineries in 2009.
The discovery process
On 22 April 2022, Lighthouse filed a list of documents which listed approximately 4,000 documents. The list included 128 documents in a separate section which were listed as confidential and in respect of which an objection to inspection was set out.[3]
[3]In fact, there were 129 documents; see [4] above.
In a letter from Lighthouse’s then solicitors Johnson Winter & Slattery (‘JWS’) dated 27 May 2022, JWS explain that the documents in respect of which the claim for confidentiality had been advanced comprise documents and communications involving Lighthouse and representatives from four identified counterparties, three of whom are nation-state organisations and one of whom is a privately owned company. Each was said to have provided documents and information to Lighthouse on a basis which prohibited subsequent disclosure by Lighthouse.
JWS asserted a claim of confidentiality over those documents on behalf of Lighthouse. However, so as to enable DLA to review the documents for the purpose of preparing any application pursuant to rr 29.08 and 32.07 of the Rules, Lighthouse was willing to produce the confidential documents to legal practitioners retained by RDTL provided they first provided a written confidentiality undertaking.
In the result, the two solicitors and counsel executed confidentiality undertakings in an agreed form.
On 5 August 2022, JWS filed a summons on behalf of Lighthouse seeking orders pursuant to s 17 of the Open Courts Act with respect to the documents listed in the AJ4 Index.
No order was sought with respect to the 5 August 2022 Affidavit itself.
The summons was initially returnable on 15 September 2022 but thereafter, following a change of solicitors by Lighthouse, the hearing of the summons was adjourned by orders made on 15 September 2022 to a date to be fixed.
Following the service of a further amended summons on 6 April 2023, seeking expanded relief in the terms set out above, the application was heard on 25 May 2023.
The evidence on the application
The Jacobs affidavits
As noted above, Lighthouse relies upon the 5 August 2022 Affidavit and the Confidential 7 May 2023 Affidavit. Mr Jacobs was also cross-examined.
As noted above, Lighthouse’s original summons did not seek any relief with respect to the 5 August 2022 Affidavit. It is of some significance that neither Lighthouse nor its previous solicitors, JWS, considered that the affidavit itself, as opposed to the documents the subject of the AJ4 Index warranted any orders or regime with respect to confidentiality. This absence of concern is understandable as the affidavit does little more than restate the matters set out in the letter from JWS to DLA dated 27 May 2022, and the rules prevent inspection by a non-party prior to the hearing of the application in any event.[4]
[4]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28.05 (‘Rules’).
As such, considered in isolation, there is no impediment to the substance of the affidavit being set out in these reasons. However, having regard to the fact that relief is now sought with respect to the contents of the affidavit, and the need to consider the affidavit in light of the Confidential 7 May 2023 Affidavit, it is appropriate to exercise some circumspection in referring to the substance of the 5 August 2022 Affidavit. Such circumspection does not in my view impede a proper understanding of these reasons.
Viewed as a whole, the affidavit discloses that in the case of one of the four counterparties the subject of agreements with Lighthouse, the relevant agreements provided for the recipient party to keep certain information confidential.[5] The information was defined widely but in orthodox terms. Otherwise, Mr Jacobs deposes to the fact that he had reviewed each of the documents over which confidentiality orders were sought and was of the opinion that if the documents were disclosed without appropriate restrictions on confidentiality, they would cause significant commercial damage to Lighthouse. Mr Jacobs makes particular reference to the following:
[5]The four counterparties being those referred to in the letter from JWS to DLA dated 27 May 2022.
(a) having regard to the industries in which Lighthouse operates, it is important for Lighthouse’s business partners and clients to be confident that their information is kept confidential and secure and that if the information became public this would undermine Lighthouse’s ability to form and maintain commercial relationships;
(b) the documents provide insight into Lighthouse’s commercial dealings including business partners, sources of products and pricing which may lead competitors to gain an advantage over Lighthouse;
(c) that the relationship between Lighthouse and one of its counterparties had already been affected by the allegations made by RDTL and that if documents relating to that counterparty were made public without appropriate restrictions as to confidentiality, this would further undermine Lighthouse’s business and commercial relationships;
(d) further, and in relation to that counterparty, Mr Jacobs deposed to a concern about the political stability of the countries in which that counterparty operated and that Lighthouse personnel may be required to travel to those countries.
Mr Jacobs then identifies six categories of documents and illustrates each category by reference to particular identified documents by reference to the number given to them in the AJ4 Index:
(a) documents containing technical and commercial data regarding one of the counterparties;[6]
[6]Document 1 in the AJ4 Index; document 28 in the Document Index.
(b) copies of the joint venture and trade agreement;[7]
[7]Document 6 in the AJ4 Index; document 16 in the Document Index.
(c) copies of other agreements between one of the counterparties and Lighthouse;[8]
[8]Document 7 in the AJ4 Index; document 21 in the Document Index.
(d) documents containing personal information including passport details of certain personnel;[9]
[9]Documents 14 and 24 in the AJ4 Index; documents 84 and 37 in the Document Index.
(e) documents containing details regarding potential customers of one of the counterparties;[10]
[10]Document 26 in theAJ4 Index; document 69 in the Document Index.
(f) ‘other confidential correspondence’ between Lighthouse and one of the counterparties;
(g) confidentiality requirements set out in an agreement between Lighthouse and another counterparty;[11]
[11]Document 90 in the AJ4 Index; document 18 and 19 in the Document Index.
(h) documents over which confidentiality orders are sought;
(i) documents setting out the technical specifications of the military of one of the counterparties;[12] and
(j) a document which contains details of pricing, volumes and types of products.[13]
[12]Document 92 in the AJ4 Index; document 11 and 12 in the Document Index.
[13]Document 94 in the AJ4 Index; document 129 in the Document Index.
The Confidential 7 May 2023 Affidavit falls into a different category. It was filed on a confidential basis. Whilst I have largely rejected Lighthouse’s application, a key plank in the reasoning is an absence of a risk of public disclosure of the information the subject of the documents, given that the documentation at this stage will only be inspected by a party to the proceeding whose use of the documentation and the information derived, will in any event, be constrained by the implied obligation that the documents and information may only be used for a purpose relating to the action in which they are produced (that is, receipt and inspection of the documents by RDTL will be constrained by the Harman undertaking).
The publication of reasons for judgment arguably may give rise to a greater risk of public disclosure than inspection of those documents being provided by Lighthouse to RDTL on the usual basis. Separate issues also arise in relation to inspection of any document filed by a non-party. Those issues are considered below. In any event, it is not necessary to refer in any degree of specificity to the nature of the material deposed to in the Confidential 7 May 2023 Affidavit in order to understand these reasons.
Relevantly, in the Confidential 7 May 2023 Affidavit, Mr Jacobs deposes to an additional matter justifying the relief sought which was not referred to in the 5 August 2022 Affidavit, or in the letter from JWS to DLA dated 27 May 2022.
In addition to the alleged confidential nature of the documents and the associated risk to Lighthouse’s commercial interests should that information be disclosed contrary to arrangements entered into by Lighthouse with third parties, Mr Jacobs deposes to a risk of personal harm to himself and to his family. The risk is said to specifically arise from the public disclosure of documents relating to one of the counterparties.[14] Mr Jacobs deposes at some length to the matters which he apprehends give rise to such a risk. Broadly, his evidence relates to asserted associations between individuals involved with one of those counterparties and those the subject of subsisting criminal charges of a serious nature.
[14]The reference to the risk of harm arising if the documents become public appears in paragraph 10, 20, 40 and 41 of the Confidential 7 May 2023 Affidavit.
In cross-examination, Mr Jacobs largely restated the concerns with respect to personal harm resulting from the public disclosure of documents relating to the counterparty identified in the Confidential 7 May 2023 Affidavit. In addition, he gave further evidence when cross-examined that his safety concerns extended to the public disclosure of documents relating to the other three counterparties as well because various unidentified ‘downstream suppliers’ were involved in the supply arrangements and those downstream suppliers might compromise his personal safety and that of his family. With one exception, Mr Jacobs did not identify the names of any of the downstream suppliers who he perceived may effect personal harm on him. He also gave evidence of shots being fired at his house which required the installation of bulletproof glass. His evidence as to who fired and what prompted the shots was not entirely clear save that he appeared to link the incident in some undefined way to an earlier arbitration between Lighthouse and RDTL which had taken place in 2014 at the International Centre for Settlement of Investment Disputes (‘ICSID Arbitration’).
Mr Jacobs otherwise confirmed in cross-examination that he had inspected each of the documents and that his concern with respect to disclosure was based on the documents disclosing names, numbers, places, people, product and pricing information, modelling and volumes of product. More generally, he restated his concern as to the adverse effect on Lighthouse’s ability to transact with counterparties generally if those parties considered that the confidentiality obligations embodied in arrangements entered into with Lighthouse could be contravened by the public disclosure of documents.
Much of the cross-examination focused on the fact that the reference to personal harm did not appear in the 5 August 2022 Affidavit. Mr Jacobs’s evidence in cross-examination was to the effect that the affidavit was drawn by his former solicitor and he could not otherwise explain why it was not mentioned.
The Prescott affidavits
In the Prescott 17 April 2023 Affidavit, Mr Prescott deposes to his review of the 129 documents listed in the AJ4 Index. He then identifies eight documents which he deposes as having been treated by Lighthouse in a manner inconsistent with the orders sought in the amended summons or which have otherwise been produced for inspection and therefore accessed by persons beyond those from whom Lighthouse now requires express confidentiality undertakings.
Mr Prescott then sets out in a table the document identification number of each of the eight identified documents and its corresponding number in the AJ4 Index. As set out in the table:
(a) document 1 in the AJ4 Index (document 28 in the Document Index) is substantially identical to a document discovered by Lighthouse in its general pool of discovery bearing document identification number LHC.001.007.0388;
(b) document 3 in the AJ4 Index (document 20 in the Document Index) is identical to an exhibit tendered in the ICSID Arbitration as exhibit C-0042;
(c) document 7 in the AJ4 Index (document 21 in the Document Index) is identical to an exhibit tendered in the ICSID Arbitration as exhibit C-0041;
(d) document 8 in the AJ4 Index (document 22 in the Document Index) is identical to an exhibit tendered in the ICSID Arbitration as exhibit C-0040;
(e) documents 54, 55 and 57 in the AJ4 index (documents 3, 31 and 35 in the Document Index) are identical to documents already in the possession of RDTL but which documents were excluded from RDTL’s discovery as documents reasonably believed to be in Lighthouse’s possession;
(f) document 94 in the AJ4 index (document 129 in the Document Index) is a document which has already been produced by Lighthouse in its general discovery in a non-confidential manner and bears the same document identification number.
In exhibit LTP10 to the Prescott 17 April 2023 Affidavit, Mr Prescott exhibits what he describes as copies of the documents tendered as exhibits in the ICSID Arbitration or the identical copies discovered by Lighthouse and produced in its general pool of discovery or the substantially identical copies of the documents in the possession of RDTL. He specifically deposes that the documents in the exhibit are not those the subject of the present amended summons.
Following the filing and service of the Prescott 17 April 2023 Affidavit, the solicitors now retained by Lighthouse, Welner Lawyers, emailed chambers, copying in DLA, asserting that the documents exhibited to Mr Prescott’s affidavit were subject to confidentiality orders and undertakings from RDTL’s solicitors regarding confidentiality and requested as a matter of urgency that the Court direct the Registry to amend the status of the affidavit to confidential so as to avoid any possible further public dissemination of the documents.
In light of that request, notwithstanding that RDTL denied that the documents exhibited to Mr Prescott’s affidavit were subject to confidentiality orders and undertakings, RDTL agreed to such a course. The agreement was provided expressly so as to avoid an unnecessary dispute and reserved RDTL’s right to submit to the contrary at the hearing of this application.
Notwithstanding this interim approach, on 19 April 2023, Welner Lawyers wrote to DLA advising that Lighthouse intended to commence contempt proceedings, pending any response before 4pm the following day.
Prior to 4pm on 20 April 2023, DLA wrote to Welner Lawyers setting out in detail why neither the documents exhibited to the Prescott 17 April 2023 Affidavit, nor the affidavit itself, were subject to the confidentiality undertaking. Relevantly, the letter from DLA confirmed that the Prescott 17 April 2023 Affidavit did not exhibit a copy of any of the 128 documents which were referenced as documents 1, 3, 7, 8, 54, 55 and 57 as set out in the AJ4. Index
On 21 April 2023, when the matter came on for directions, the Court was asked by Lighthouse to make orders that the Prescott 17 April 2023 Affidavit and exhibit LTP10 be treated as a confidential affidavit pending any further order. No objection was made by RDTL which was content to rely on its existing reservation of rights. At the directions hearing, counsel for Lighthouse stated to the Court that he was instructed that Lighthouse intended to commence contempt proceedings by 4pm on 2 May 2023 and the proposed form of order handed up by counsel contained a reference to same in the section headed ‘Other Matters’.
On 28 April 2023, DLA wrote to Welner Lawyers setting out with considerable specificity why the contempt application was misconceived and requested that Welner Lawyers confirm by no later than 2 May 2023 that Lighthouse no longer intended to proceed.
By the time Lighthouse’s confidentiality summons came on for hearing on 25 May 2023, no contempt application has been commenced, nor had Welner Lawyers made any substantive response to the matters raised by DLA in their letters of 20 April 2023 and 28 April 2023.
On 15 May 2023, DLA Piper wrote to Welner Lawyers seeking confirmation by close of business on 18 May 2023 that if Lighthouse’s confidentiality application failed, Lighthouse would promptly discharge all those who had provided express confidentiality undertakings from the undertakings.
As at the date of the hearing of this application, no substantive response had been provided by Welner Lawyers.
The only answer to the matters raised in the Prescott 17 April 2023 Affidavit is contained in paragraphs 45 and 46 of the Confidential 7 May 2023 Affidavit made by Mr Jacobs. The response is confined to paragraph 13 of the Prescott 17 April 2023 Affidavit only and the table referred to in that paragraph.
Although Lighthouse asserts that the entirety of the affidavit is confidential, paragraphs 45 and 46 plainly do not bear that character and it is appropriate to refer to them. In paragraph 45, Mr Jacobs says he has read the Prescott 17 April 2023 Affidavit and that he disputes paragraph 13 (of the Prescott 17 April 2023 Affidavit) and ‘the status of the documents that [Mr Prescott] has identified in the table contained in that paragraph’. In paragraph 46, Mr Jacobs says that the documents to which Mr Prescott refers in the table in his affidavit are ‘contained in the confidentiality undertaking’ signed by Mr Prescott and that the ‘document descriptions in each of the eight documents (referred to by Mr Prescott) did not in any way displace the quality of confidence that otherwise was attached to those documents and to which the confidentiality undertaking specifically refers.’
It is difficult to reconcile this evidence, which is in the nature of a submission, with the specific content of paragraph 13 of the Prescott 17 April 2023 Affidavit. It appears that Mr Jacobs may have overlooked, misunderstood or failed to pay specific attention to Mr Prescott’s statement that the documents in exhibit LTP10 are copies of documents that are not the subject of the present amended summons.
Mr Prescott was not cross-examined. I therefore accept his evidence. Accordingly, I accept that the documents which are referred to in Mr Prescott’s affidavit at paragraph 13 and the copies contained in exhibit LTP10 are not the documents listed in the AJ4 exhibit but are copies of documents either discovered by Lighthouse and made available to RDTL without any objection to inspection or otherwise provided to Lighthouse without objection or which were tendered as exhibits in the ICSID Arbitration. RDTL relies on the matters set out in the affidavit in support of its opposition to the relief now sought in the amended summons.
Inspection of the documents
At the conclusion of the hearing of the application, Lighthouse requested that I inspect a folder of documents which were handed up accompanied by the Document Index. RDTL made no objection.[15] Such a course is not controversial.[16]
[15]In fact, the folder of documents had been prepared by the solicitors for RDTL.
[16]Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 41 (‘Mobil Oil’).
Resolution of this application does not require an assessment of the documents on a document-by-document basis. In any event, such a course is less than satisfactory given that the evidence tendered on the application is confined to specific reference only to a handful of documents[17] and otherwise comprises the rather general and conclusionary evidence given by Mr Jacobs.
[17]See [33] above.
In any event, I examined each of the documents and in this section of the reasons refer to the specific documents identified in the 5 August 2022 Affidavit as well as a handful of other documents which are relevant to the disposition of the application.
At the outset, it is pertinent to observe that the documents are historical in nature and comprise documents dated or communications sent during the period from the last half of calendar year 2010 to the first half of calendar year 2011, save with one exception dated 9 January 2013.[18]
[18]Document 129 in the Document Index which bears the date 9 January 2013.
Turning first to the documents to which Mr Jacobs makes particular reference in the 5 August 2022 affidavit which, for convenience, are referred to by reference to the number in the Document Index (not the AJ4 Index):
(a) document 28[19] is a copy of a PowerPoint presentation relating to a refinery between one of the counterparties apparently in partnership with Lighthouse – the document is undated and contains information relating to the operation of a refinery;
[19]See also footnote 6.
(b) document 16[20] is a joint venture and trade agreement between Lighthouse and one of its counterparties which contains a confidentiality clause in fairly standard terms by which, among other things:
[20]See footnote 7.
(i) the parties agree that they will protect and not disclose any confidential information disclosed by the other without the prior express written consent of the furnishing party; and
(ii) the agreement defines confidential information in wide terms, including by reference to all disclosures made by each to the other;
(c) document 21[21] is a master processing and trade agreement between Lighthouse and the same counterparty. A large part of the document including the clause which relates to confidentiality has been redacted, apparently without complaint;
[21]See footnote 8.
(d) documents 37 and 84;[22] document 37 is an email which attaches a production report from the refinery and financial statements relating to a refinery which cover the period 2007 to 2009; presumably document 39 is the attachment. Document 84 is an email to Mr Jacobs which encloses pages of a passport of an individual which passport expired in December 2018;
[22]See footnote 9.
(e) document 69[23] is an email sent to Mr Jacobs dated 25 November 2010 which appears to set out some formalities associated with the certification of documents or the execution of documents; on the face of it, it appears rather innocuous;
[23]See footnote 10.
(f) documents 18 and 19;[24] document 18 is an email sent to Mr Jacobs from a person who does not appear to be associated with any of the identified counterparties dated 26 October 2009 which states that it contains a non-disclosure agreement (which is the following document numbered 19);
(g) documents 11 and 12;[25] document 11 is an email from Mr Jacobs to two other individuals in August 2010 attaching a government-issue document[26] which requests that the recipient not distribute the document other than to one particular identified counterparty (who is one of those referred to in the Jacobs 7 May 2023 affidavit); document 12 is the attachment; and
(h) document 129[27] is a letter sent by James Podaridis, described as the barrister and general counsel for Lighthouse to a person who is the chairman of the board of a company located in Houston whose identity is redacted, enclosing a series of other documents which purport to evidence Lighthouse’s supply capability. The redaction appears to have occurred without complaint from RDTL .
[24]See footnote 11.
[25]See footnote 12.
[26]The particular government is not clear.
[27]See footnote 13.
Some other documents warrant specific mention:
(a) Document 4 is an email from one of the counterparties sent to Ambassador Guterres but which is marked private and confidential information only, not for public use, not for distribution.
(b) Document 20 appears to be a tax return in a foreign language for an entity for the month of December 2009, which document is reported as being the property of Lighthouse.
(c) Document 25 is an identical document to that which is document 4 and once again was sent to Ambassador Guterres.
(d) Document 30 is an email from Mr Jacobs dated 8 February 2011 sent to Ambassador Guterres and which contains a copy of the earlier letter dated 8 February 2011.[28] Document 31 is a communication between Ambassador Guterres and ‘Sean’ (presumably Sean Magee) dated 9 February 2011.
[28]It seems likely that this or documents 32 -35 are the documents referred to in RDTL’s rejoinder; see [16] and [17] above.
(e) Document 32 is a communication between Ambassador Guterres and, among others, Mr Jacobs dated 8 February 2011.
(f) Document 35 is yet a further copy of the letter to Ambassador Guterres dated 8 February 2011.
(g) Document 42 is an email between Mr Podaridis and Mr Jacobs, among others, dated 22 November 2010 which summarises a Wikipedia entry about a particular individual.
(h) Document 43 is a communication between an employee at Morgan Stanley and Mr Jacobs dated 3 February 2011.
(i) Document 76 is a communication between one of the representatives of the counterparty and Mr Jacobs with specifications for some form of crude oil dated 7 December 2010 which specifications are then attached and comprise document 78.
(j) Document 91 and the enclosed document 92 is an email between Mr Jacobs and a representative of the one of the refineries with a production report from 2007 to 2009.
(k) Document 102 is an email between a Mr Maddocks and Mr Jacobs dated 20 November 2010 which again provides a link to a Wikipedia entry with information about an individual.
(l) Document 109 is a crude oil contract apparently undated between a buyer and a seller comprising persons who are neither parties to these proceeding nor any of the identified counterparties.
Relevant principles
Section 17 of the Open Courts Act provides that a court may make a ‘proceeding suppression order’:
To prohibit or restrict the disclosure by publication or otherwise of –
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
The making of an order depends on the establishment of the grounds specified in s 18. Relevantly, s 18 requires that the order be ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’.
The Court must be satisfied on the basis of ‘cogent’ evidence or sufficient credible information that is satisfactory to the Court, that the ground for making the order is established.[29] The Court must carefully examine and scrutinise the justification for any order.[30]
[29]PQR v Secretary, Department of Justice and Regulation (No 1) (2017) 53 VR 45, 62 [45] (‘PQR’); Open Courts Act s 14.
[30]PQR (n 29) 65 [54]; WEQ (a pseudonym) v Medical Board of Australia [2021] VSCA 343 [65] (‘WEQ’).
If the Open Courts Act applies, there is a statutory presumption in favour of disclosure.[31] Section 4 of the Open Courts Act requires the Court to have regard to the primacy of the principle of open justice and free communication and to only make an order if the circumstances make it necessary to displace the principle. Necessity is a stringent standard requiring a high degree of satisfaction; it is not enough that the order is reasonable or desirable.[32]
[31]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 618 [32] (‘Cargill (23)’).
[32]WEQ (n 30) [64]; AB v CD [2019] VSCA 28 [68].
The applicant must ‘convincingly establish’ that the presumption of open justice should be qualified by a suppression order.[33]
[33]PQR (n 29) [46], [62].
Relevantly, s 7 of the Open Courts Act provides that the Open Courts Act does not limit or otherwise affect:
(a)the making of an order or decision by a court or tribunal that requires the disclosure of information in the course of, or in relation to a proceeding;
(b)any rule of law restricting the permitted use and disclosure of information referred to in paragraph (a);
…
(d)the making of an order or decision by a court of a tribunal that –
…
(ii)restricts the way an event or thing may be referred to in open court;
(iii) prohibits or restricts access to a court or tribunal file.
Where orders are sought in the nature of non-publication orders, it is not sufficient for the applicant to assert that the documents are inherently confidential. Nor is it enough that reputational damage will result.[34] The principal question to be addressed is whether the order is necessary to prevent prejudice to the administration of justice.[35]
[34]Rinehart v Welker (2011) NSWLR 311, [31], [54]-[55].
[35]Hogan v Australian Crime Commission (2010) 240 CLR 651, 666 [38]-[39].
Importantly, an order is not ‘necessary’ if it appears to the Court ‘to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics’.[36]
[36]Ibid [31].
Documents provided by way of discovery are subject to an implied obligation that they may only be used for a purpose relating to the action in which they are produced (‘Harman undertaking’).[37]
[37]Harman v Secretary of State for the Home Department (1983) 1 AC 280, 313 (‘Harman’), as discussed in Hearne v Street (2008) 235 CLR 125, 157-163 (‘Hearne’).
However, in cases where discovery extends to the provision of documentation to a commercial rival, reliance on the Harman undertaking may not be sufficient. To rely upon the implied obligation not to make collateral use of documents may impose on the trade rival an obligation that is impossible of performance because the information once revealed cannot be put out of the mind of the recipient. It may also be impossible of enforcement by the party whose secrets had been revealed.[38] Once such documents are inspected by the principals of a trade rival, the information revealed will then become known to the trade rival and cannot be forgotten. Any confidentiality is destroyed once and for all.
[38]Mobil Oil (n 16) 38.
As a result, in appropriate cases, courts make orders pursuant to the court’s inherent jurisdiction that inspection of certain categories of documents be limited to certain nominated persons, often external legal representatives or counsel of the parties and specified representatives of the parties upon those persons giving express undertakings.[39] Such orders are commonly made in circumstances where the party obtaining discovery is a trade rival of the person providing discovery and whose secrets would be revealed by inspections.
[39]See, for example, the orders set out in [4] of Cargill Australia Ltd v Viterra Malt Pty Ltd (No 13) [2018] VSC 478, [4] (‘Cargill (13)’).
Application of the principles
Before turning to the application of the relevant principles to the present circumstances, it is pertinent to record a number of matters at the outset.
First, RDTL and Lighthouse are not trade rivals. The reasoning which underpins the making of orders in the court’s inherent jurisdiction that inspection be restricted to particular identified representatives on the basis of the provision of an express undertaking has no application here.
Secondly, it is clear that Mr Jacobs’ concern is with ‘public disclosure’; this is apparent from his express statements to that effect in the Confidential 7 May 2023 Affidavit[40] and from the fact that Lighthouse does not seek to confine the cohort of persons who may inspect the documents. So much follows also from the relief sought in the amended summons which permits inspection by any person, servant or agent of RDTL provided that the person concerned has executed an express confidentiality undertaking.
[40]Paragraphs 10, 20, 40 and 41 of the Confidential 7 May 2023 Affidavit.
Thirdly, this proceeding is only at the discovery stage. A risk of public disclosure arises if the content of the documents, to which objection is taken, is revealed in open court and then publicly disclosed in some way; whether by published reasons for judgment, news reports, or public disclosure by parties or their legal representatives or some other person present in court when the content of the document is revealed. Reference to the content of the documents in open court will likely only occur at trial and then only if the documents are tendered in the proceeding. At this concededly early stage, this seems somewhat unlikely; only two or so have been referred to in the pleadings and most seem peripheral to say the least to the matters in dispute in the proceeding. Neither party’s submissions, written or oral, in this application condescended to the specifics of the documents and it has not been necessary to do so in these reasons save to the extent set out above.
Fourthly, and putting to one side inspection of the Court file which is considered separately, Lighthouse’s argument in essence proceeds on the basis of a risk of public disclosure being made by servants or agents of RDTL. At the hearing of the application, Lighthouse submitted that an express confidentiality undertaking was necessary because of the range of servants or agents of RDTL who may become aware of the documents given the fact that there are no doubt a range of people who from time to time constitute the government of RDTL.
Fifthly, any inspection of documents by persons providing instructions on behalf of RDTL will of course be subject to the implied undertaking in any event.
Sixthly, notwithstanding Mr Jacobs’ evidence to the effect that he carefully selected the documents which are the subject of the objection to inspection, it is tolerably clear that the objection to inspection in a number of cases cannot possibly be sustained. To take some of the most stark examples; objections to inspection are advanced in relation to documents sent to Ambassador Guterres. There is no evidence that when they were provided to him some 12 years ago or so their receipt was conditional on or accompanied by an express confidentiality undertaking. Acceptance of Lighthouse’s submission would mean that Ambassador Guterres could not now be provided with access to a document previously provided to him without first providing an express confidentiality undertaking. In other cases, according to Mr Prescott’s relevantly uncontradicted evidence, the same document has been discovered absent any objection to inspection. It is also far from apparent how internal Lighthouse emails containing a Wikipedia link possibly warrant some form of protection from disclosure. Indeed, as noted above, the relevance of other documents (or certainly parts of them) is very difficult to discern and has not been explained. Quite how the pages of an expired passport relating to a third party individual could bear on any issue in this dispute is difficult to conceive. In other cases, parts of the documents have been redacted presumably on the basis that they contain irrelevant material and there is no evidence which suggests that this course has been challenged by RDTL.
Subject to the caveat that the parties have not yet filed their evidence, at this stage the likely significance of the documents set out in the AJ4 Index is that they are relevant to the question of Lighthouse’s purported experience and capability which in turn relate to the falsity or otherwise of the representations. The minutiae of the documents, apparent on an inspection, appear to lie very much at the periphery.
One suspects that this controversy could have been avoided or at least minimised had a more nuanced approach been taken by Lighthouse to discovery. Much of the information which is the subject of the disclosed concern could, one suspects, have been the subject of relevance redactions.[41] As noted above, redactions have occurred in relation to some disconnected cases, without controversy.
[41]As was discussed for example in MG Corrosion Consultants Pty Ltd v Gilmour [2011] FCA 1514 [11]-[13].
Seventhly, whilst it is rather surprising that Mr Jacobs’ apprehension of personal harm was not adverted to at all in either the letter from JWS to DLA dated 27 May 2022 or in the 5 August 2022 Affidavit, this is an insufficient foundation to reject his sworn evidence contained in the Confidential 7 May 2023 Affidavit and restated in cross examination. I intend therefore to proceed on the basis that Mr Jacobs has a genuine belief that personal harm may result from public disclosure of the documents in the AJ4 Index at least from the counterparty referred to in the Confidential 7 May 2023 Affidavit. Given the dated nature and rather apparently innocuous nature of much of that information, the reasonableness of that fear may be another matter, but on the basis of the present material I cannot find that Mr Jacobs’ honest fear is sufficiently irrational or unfounded that it can be put to one side.
I am far less persuaded by his evidence with respect to a fear of harm arising from the ‘downstream actors’ becoming aware of the provision of such documentation. Not only was this fear not referred to in the 5 August 2022 Affidavit, it was not referred to in the Confidential 7 May 2023 Affidavit either. The evidence given in cross-examination was the first time on which any such fear had been voiced and Mr Jacobs’ evidence entirely lacked detail or specificity.
Eighthly, I am less persuaded as to his evidence as to the risk of commercial harm which was cast in general terms and is difficult to reconcile with the aged nature of the information and the number of documents in respect of which a claim is made in respect of documents which patently could not bear that quality and the previous inconsistent treatment of documents of like character by Lighthouse. Whilst some, but far from all, of the documents may have been provided by a counterparty and fall within the ambit of a confidentiality clause in an agreement entered into some 13 years ago, the aged nature of the information and the absence of evidence as to how Lighthouse received the information along with an absence of specific concern as what is conveyed means that I put to one side the concerns as to commercial harm.
In the result, to the extent to which Lighthouse’s concerns retain substance, they rest on Mr Jacobs’ apprehension of personal harm if the content of the documents becomes publicly disclosed.
Against that background, I do not consider that it is necessary at this stage to make a proceeding suppression order pursuant to s 17 of the Open Courts Act. The present controversy is confined to the inspection by RDTL of documents discovered in the proceeding by Lighthouse. In the ordinary case, discovered documents will only be publicly disclosed, if either the discovering party or the inspecting party wishes to tender the documents in evidence at the trial of the proceeding. Here, no trial date has been set and nor have any orders been made for the filing of evidence. Given the issues in dispute and the apparent peripheral nature of many of the documents in respect of which an objection to inspection is made, there is a reasonable expectation, to put it mildly, that many of the documents will not be tendered in evidence. If they are, and if the documents that are sought to be tendered at trial might be such that their public disclosure gives rise to a real and substantial risk of prejudice in the proper administration of justice that cannot be prevented by other reasonably available means[42] or the order is necessary to protect the safety of a person,[43] it will be open to Lighthouse to apply at that stage for such an order.
[42]Open Courts Act (n 1) s 18(1)(a)
[43]Open Courts Act (n 1) s 18 (1)(c).
At this discovery stage however, I am not satisfied that such an order is necessary. The inspecting party, here RDTL, is bound by the Harman undertaking. It may only use the documents for a purpose relating to this proceeding.[44] The implied obligation or undertaking is a substantive legal obligation,[45] which extends to third parties.[46] These protections are normally sufficient.[47] The necessity for anything beyond the implied obligation such as an express undertaking is exceptional.[48]
[44]Mobil Oil (n 16) 38; Hearne (n 36) 157-163.
[45]Hearne (n 37) 158.
[46]Ibid 160.
[47]Mobil Oil (n 16) at 38.
[48]Hearne (n 37) 162-163 [116].
Lighthouse submits that the Harman undertaking is not sufficient and seeks an express undertaking, although importantly it does not seek to confine the class of persons comprising relevant employees, servants or agents of RDTL in any way save for confining the class of recipients to those who have first entered into an undertaking in the form previously accepted by the legal advisers of RDTL who have provided same to date.
It must be taken to submit therefore that the present case is exceptional and that an appropriate means of addressing the risk is to condition inspection on the provision of a signed undertaking. In making this submission, Lighthouse by implication recognises that such a course may represent ‘other reasonably available means’ to prevent a real and substantial risk of prejudice to the proper administration of justice’ such that a proceeding suppression order is not necessary.[49] The Open Courts Act does not limit nor affect the making of an order by a court which requires the disclosure of information,[50] such as an order that inspection only be provided to those who have executed a signed undertaking.
[49]Open Courts Act (n 1) s 18(1)(a).
[50]Open Courts Act (n 1) s 7(a).
The question therefore is whether Mr Jacobs’ fear of personal harm is such as to require that all employees or servants or agents of RDTL who wish to inspect the documents must first sign a confidentiality undertaking. Given that Mr Jacobs’ apprehension is based on public disclosure, the critical question is whether inspection absent an express undertaking gives rise to a risk of public disclosure with the attendant consequence of a risk of personal harm to Mr Jacobs such that the present should be regarded as an exceptional case warranting inspection being afforded on the basis of such a condition.
I do not accept that this is so. First, absent a breach of the Harman undertaking, there is no appreciable risk of public disclosure of the content of the documents. Such disclosure as is likely to occur, consistent with adherence to Harman, will only arise if the documents are tendered or information derived from them is given as oral evidence at trial. If that is so, it will be open to Lighthouse to make application for appropriate orders then if necessary.
Secondly, the Lighthouse submission assumes that a Harman undertaking offers insufficient protection. Of course, I would expect, and have no reason to doubt, that the relevant practitioners at DLA with the care and conduct of this proceeding will remind any recipients of the documents and information of the existence and content of the Harman obligation.
Thirdly, the submission assumes that the Harman undertaking is insufficient but an express undertaking sufficiently ameliorates the risk. The foundation for this submission is that the class of representatives of RDTL who might be exposed to the document is both large and changing, such that the import of the Harman undertaking needs to be reinforced by a signed express undertaking which will also assist in any enforcement of the undertaking. Whilst there is a commendable pragmatic flavour to this submission, it is not one which I can accept because there is no evidence which supports the proposition that the Harman undertaking is insufficient for the same reasons as expressed above. Certainly, copies of the very same documents have been previously provided to RDTL,[51] without any evidence of misuse of complaint, save for that which followed the filing of the Prescott 17 April 2023 Affidavit which is addressed separately. Certainly, there is no evidence from Mr Jacobs which points to past public disclosure as a basis for a fear of public disclosure in the future. Nor am I persuaded on the current evidence that there will be a need for the documents to be made available to a large and amorphous cast of representatives of RDTL. Given their apparent minor significance to the issues in dispute, my current impression is very much to the contrary.
[51]See [40] above.
Finally, whilst I am proceeding on the basis of Mr Jacobs’ belief as to a risk of personal harm, his apprehension of personal harm did not require any objection to inspection in relation to documents in the ICSID Arbitration or the provision of documents to RDTL on an unrestricted basis in 2011. Nor did the provision of the information result in the manifestation of the risk of harm about which Mr Jacobs now complains, or at least provide any clear evidence of a probative nature in relation to same. All of this suggests that the fear of harm which Mr Jacobs harbours may perhaps be somewhat overstated, particularly in the terms in which it is cast over all 129 documents.
Overall then I am not satisfied that it is appropriate to condition the inspection right of RDTL and its employees, servants, agents on provision of a signed confidentiality undertaking.
As noted above, RDTL has sought confirmation from Lighthouse to the effect that if its application for confidentiality type orders is refused, it will release those who have signed confidentiality undertakings previously from those undertakings. No substantive response has been provided by Lighthouse. Absent an undertaking to that effect, I shall make orders in appropriate terms.
Application for orders restricting access to the court file
The remaining matter is Lighthouse’s application for orders restricting access to the Court file in respect of each of the 5 August 2022 Affidavit, exhibit AJ4 to that affidavit and to the documents listed in the AJ4 Index. This part of the application was not adduced in the parties’ written outline of submissions or orally but relief is sought in the amended summons and was not abandoned.[52] In any event because the application was very much focused on public disclosure, the question of access to the court file requires specific consideration. It is also convenient to deal at the same time with access to the Court file in relation to the Confidential 7 May 2023 Affidavit which has been treated by the parties as confidential and the Prescott 17 April 2023 Affidavit, which was the subject of an order made 21 April 2023 that it not be made available for inspection absent Court order. As noted above, the order was made on the basis that RDTL reserved the right to argue otherwise at this hearing.
[52]It is possible that the parties were proceeding on the basis of the pre-1 October 2021 version of r 28.05 of the Rules; see [100]-[102] below.
Whilst I have rejected Lighthouse’s application for orders under the Open Courts Act or pursuant to the inherent jurisdiction of the Court that RDTL and its employees, servants or agents only be entitled to inspect the documents after first providing an express confidentiality undertaking, an important plank in that reasoning is the unlikelihood of public disclosure of the documents at this stage arising from the combination of the peripheral nature of the documents to the issues in dispute, the fact that the proceeding is only at the discovery stage and because RDTL is bound by the Harman undertaking.
If a member of the public is able to inspect the affidavits and exhibits, this gives rise to an additional risk of disclosure necessarily to the public which is not mitigated by the factors which are relevant to the denial of the relief sought as against RDTL. Therefore, the question of access to the Court file requires separate consideration.
Questions of access therefore arise in relation to the following:
(a) the 5 August 2022 Affidavit;
(b) exhibit AJ4 to that affidavit;
(c) the documents listed in the AJ4 Index;
(d) the Confidential Jacobs 7 May 2023 Affidavit;
(e) the Prescott 17 April 2023 Affidavit; and
(f) exhibit LTP10 to the Prescott 17 April 2023 Affidavit.
Although the same principles apply for each category of information and there is some overlap in the analysis, different questions arise and each category must be considered separately.
The starting point is r 28.05 of the Rules which reads:
28.05Inspection 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;
(e)written submissions, outlines of argument, 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 took effect on 1 October 2021. Prior to this, the general rule was that a member of the public had the right to inspect the Court file and obtain a copy of any document on payment of the proper fee. That right could be curtailed if the Court ordered that a document remained confidential or if the Prothonotary was of the opinion that a document ought to remain confidential to the parties.[53] The amendment to the Rules which took effect on 1 October 2021 altered this position with the consequence that a person not a party could not inspect affidavits and exhibits to affidavits without leave of the Court. That restriction does not apply where a document has been read or relied on in open court or relied on in an application determined without a hearing.
[53]Re Proceeding No 291 of 1944 [2006] VSC 50, [13]; Re A Former Officer of the Australian Security Intelligence Organisation (1987) VR 875, 878.
Accordingly, until this application was heard on 25 May 2023, no member of the public could obtain access to the 5 August 2022 Affidavit, or the Confidential 7 May 2023 Affidavit, or the Prescott 17 April 2023 Affidavit, or to any of the exhibits to those affidavits.
In light of this rule, the concern which motivated Lighthouse’s hostile reaction to the filing and service of the Prescott 17 April 2023 Affidavit appears misplaced. It may be that the concern was based on a perceived risk of inspection which arose based on the rule applicable prior to 1 October 2021.
Nevertheless, now that the application has been heard and Lighthouse has relevantly relied upon the 5 August 2022 Affidavit, and the Confidential 7 May 2023 Affidavit, including the exhibits to those affidavits, and RDTL has relied upon the Prescott 17 April 2023 Affidavit and the accompanying exhibit, the restriction on access embodied in r 28.05(2) does not apply.[54]
[54]Rules (n 4) r 28.05(3).
Unless the Court orders that the relevant documents remain confidential,[55] persons who are not parties to the proceeding may inspect and obtain a copy of each of those documents.
[55]Ibid r 28.05(4).
The documents themselves, however, have not been filed, save to the extent to which they form part of any exhibits to any of those affidavits. To the extent therefore that Lighthouse seeks an order pursuant to r 28.05 in respect of the documents listed in the AJ4 index, the application is misplaced because no discovered documents have been filed whether the subject of objection or not. An order pursuant to r 28.05 is neither appropriate or necessary.
Before turning to the 5 August 2022 Affidavit, the Confidential 7 May 2023 Affidavit and the Prescott 17 April 2023 Affidavit or the exhibits to those affidavits, it is necessary to return to some relevant principles.
As noted above, the Open Courts Act does not limit or otherwise affect the Court’s jurisdiction to make orders that restrict access to Court documents. So much is clear from s 7(d) of the Open Courts Act which provides that the Open Courts Act does not limit or otherwise affect the making of an order or decision by a Court or Tribunal that ‘… (iii) prohibits or restricts access to a Court or Tribunal file.’[56]
[56]Open Courts Act (n 1) s 7(d).
Regardless of whether the application is perceived through the prism of the making of an order pursuant to r 28.05,[57] there is a basic presumption in favour of disclosure of information. The administration of justice is underpinned by judicial hearings taking place in open court publicly and in open view.
[57]Rules (n 4 ) r 28.05.
However, there are cases where the general rule requires modification in the interests of justice. The exceptions are few and varied and the categories of case are not closed.[58]
[58]Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd [2015] VSC 717, [8].
The guiding principle in any case is what in the particular circumstance of the case is necessary to secure the proper administration of justice.[59]
[59]Hogan v Hinch (2011) 243 CLR 506, 531 [21].
In HT v R,[60] Kiefel CJ, Bell and Keane JJ noted that it is well known that the courts have modified and adapted the content of the general rules of open justice and procedural fairness in particular kinds of cases.[61] The nature and extent of such modifications are fact-sensitive, generally assessed on a broad principle that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the party.
[60](2019) 269 CLR 403, 435 [82].
[61]Ibid [44].
If the 5 August 2022 Affidavit is considered in isolation, there is no basis for the making of an order restricting access. There is nothing in the affidavit which can be regarded as confidential. The affidavit describes the discovery process and sets out the basis of Lighthouse’s claim for orders with respect to confidentiality and otherwise describes the names of and status of the four relevant counterparties. Nor on the face of it and considered in isolation, does much of exhibit AJ4 justify an order to the effect that the exhibit not be available for inspection. Save for the heading itself of the document, ‘Index of Confidential Documents’, the index itself is unremarkable. The documents are listed by reference to document ID number and otherwise the descriptions are, for the most part, brief and anodyne. Much of the balance of the exhibit comprises correspondence between the solicitors with one exception; an annexure to the confidentiality undertaking signed by DLA’s legal advisers includes a further list which describes the documents received in a way which discloses the email addresses of various representatives of counterparties who dealt with Lighthouse. To that extent therefore, the information contained in the exhibit discloses part of the discovered documents by way of the disclosure of private information from persons who are not parties to the current proceeding. Whether the 5 August 2022 Affidavit in fact should be considered in isolation is considered further below.
The Confidential 7 May 2023 Affidavit of Mr Jacobs requires different consideration. In this affidavit, Mr Jacobs deposes in specific terms as to the basis of his concerns with respect to personal harm. The disclosure extends to the naming of some of the persons concerned. Whilst I am not concerned of a public disclosure of this information by a party to the proceeding, if no order is made restricting the right to inspect this affidavit, the fear of public disclosure which lies at the heart of Mr Jacobs’ concerns may be fulfilled. The likelihood of consequential personal harm is of course another matter. However, if I accept as I do, that Mr Jacobs’ fears are genuinely held, then such a fear is a factor which points in favour of an order restricting access to the Confidential 7 May 2023 Affidavit. It is not possible to evaluate the legitimacy of those fears in any meaningful way and to discount them. These are factors which weigh in favour of an order restricting inspection. Conversely, if Mr Jacobs’ concerns as to personal harm are based on a genuine fear but are exaggerated, the affidavit has another vice as it makes allegations of a serious nature about persons who are not parties to this proceeding and which would not be resolved in this proceeding. The allegations would therefore remain unanswered.
Further, whilst the 5 August 2022 Affidavit and much of exhibit AJ4 in isolation do not warrant concern, if I accept the legitimacy of Mr Jacobs’ concerns as set out in the Confidential 7 May 2023 Affidavit, then inspection of the 5 August 2022 Affidavit at large will give rise to public disclosure of the fact that Lighthouse has disclosed allegedly confidential documents to RDTL. This is a factor which weighs in favour of restricting inspection of the 5 August 2022 Affidavit and of exhibit AJ4, along with the private nature of some of the information contained in the exhibit.
There are no such concerns with respect to the Prescott 17 April 2023 Affidavit alone. The affidavit simply recites various procedural matters and relevant background and then lists various documents by reference to their document ID number which are otherwise accompanied by an anodyne description. The exhibit LTP10, however, falls into a different category. Although the documents exhibited to Mr Prescott’s affidavit are not the documents which are the subject of the objection to inspection, Mr Prescott’s affidavit does depose to the fact that they are the same or identical to documents which are the subject of an objection to inspection.
Thus, a reading of the affidavit along with the exhibit would enable a reader to ascertain the content of the documents in respect of which an objection to inspection is made because they are said to be the same documents as those exhibited and hence result in the disclosure to the public of the information which Mr Jacobs has attested to give rise to an apprehension on his part of a risk of personal harm. This is a factor which weighs in favour of an order restricting access to both the Prescott 17 April 2023 Affidavit and exhibit LTP10 to Mr Prescott’s affidavit.
The countervailing factor in favour of inspection is the principle of open justice. However, the application of the principle and the appropriateness of modifications in the present case must recognise that the present debate is only an interlocutory dispute about inspection of discovered documents. There is ordinarily no matter of public interest relating to discovery disputes at least of this nature and no entitlement to inspect discovered documents. The absence of any relevant public interest is heightened here where the documents themselves are of peripheral relevance to the dispute at large. Moreover, until relatively recently, exhibits to affidavits filed for the purposes of interlocutory disputes were not filed and hence could not be inspected in any event. The subject matter of the material potentially the subject of a request for inspection by a member of the public is information provided for the purposes of an interlocutory dispute about discovered documents where the discovered documents themselves cannot be inspected, where the documents were in large part provided by third parties and in some cases contain private information and which overall seem peripheral to the issues in dispute at large in the proceeding. There is no, or at the very least a most limited, public interest in the inspection of such material; the material here is far removed from that considered by John Dixon J in Bolitho v Banksia Securities Ltd (No 9).[62] This limited interest must be balanced against the fear of personal harm deposed to by Mr Jacobs and give way to it.
[62][2020] VSC 309 [32]-[35].
Conclusion
Orders will be made that no person who is not a party to the proceeding may inspect the 5 August 2022 Affidavit or exhibit AJ4 to the affidavit, or the Confidential 7 May 2023 Affidavit. The order made on 21 April 2023 in respect of the Prescott 17 April 2023 Affidavit does not require further order.
Lighthouse’s application will otherwise be dismissed. RDTL has succeeded in its opposition to the more substantive part of the application. I will hear the parties as to costs.
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SCHEDULE OF PARTIES
BETWEEN:
| Lighthouse Corporation Limited (IBC 051 557) | First Plaintiff |
| Lighthouse Corporation Pty Ltd (ABN 25 343 263 433) | Second Plaintiff |
| and | |
| Republica Democratica de Timor Leste | First Defendant |
| Estado da Electricidade Agua e Urbanizaco | Second Defendant |
(by original proceeding)
AND BETWEEN:
| Republica Democratica de Timor Leste | First Plaintiff by Counterclaim |
| Estado da Electricidade Agua e Urbanizaco | Second Plaintiff by Counterclaim |
| and | |
| Lighthouse Corporation Limited (IBC 051 557) | First Defendant by Counterclaim |
| Lighthouse Corporation Pty Ltd (ABN 25 343 263 433) | Second Defendant by Counterclaim |
(by counterclaim)
3
15
0