Lisson Nominees Pty Ltd Trading as BGC Builders Supplies as trustee for the PBS Unit Trust v Conview Victoria Pty Ltd [No 2]

[2021] WASC 381

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LISSON NOMINEES PTY LTD TRADING AS BGC BUILDERS SUPPLIES AS TRUSTEE FOR THE PBS UNIT TRUST -v- CONVIEW VICTORIA PTY LTD [No 2] [2021] WASC 381

CORAM:   ACTING PRINCIPAL REGISTRAR MCDONALD

HEARD:   ON THE PAPERS

DELIVERED          :   5 NOVEMBER 2021

FILE NO/S:   CIV 1698 of 2021

BETWEEN:   LISSON NOMINEES PTY LTD TRADING AS BGC BUILDERS SUPPLIES AS TRUSTEE FOR THE PBS UNIT TRUST

First Plaintiff

BGC (AUSTRALIA) PTY LTD

Second Plaintiff

AND

CONVIEW VICTORIA PTY LTD

First Defendant

SHARON JING CHEN

Second Defendant

JIE LU

Third Defendant

ANGELA LIXIA HUANG

Fourth Defendant

Catchwords:

Practice and procedure - Application by non-party for access to inspect documents in proceedings commenced after 1 March 2018 - Affidavits and submissions considered in a freezing order application - Rules of the Supreme Court 1971 (WA) O 67B, r 9 and r 11

Legislation:

Rules of the Supreme Court 1971 (WA), O 67B r 9 and r 11

Result:

Non-party allowed access to redacted documents

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Non-party Applicant	:	No appearance

Solicitors:

First Plaintiff	:	Jones Day
Second Plaintiff	:	Jones Day
First Defendant	:	HWL Ebsworth
Second Defendant	:	HWL Ebsworth
Third Defendant	:	HWL Ebsworth
Fourth Defendant	:	Dentons
Non-party Applicant	:	Steedman Stagg Lawyers

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

ASIC v Rich [2002] NSWSC 198

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609

Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers & Anor [2007] WASC 133

Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133

Buswell v Carles [No 2] [2013] WASC 54

eisa Ltd v Brady [2000] NSWSC 929

Lee v Australian Executor Trustees as Trustee of the Estate of the Late Ronald William Lee [2020] WASC 309

Lisson Nominees Pty Ltd Trading as BGC Builders Supplies as Trustee for the PBS Unit Trust v Conview Victoria Pty Ltd [2021] WASC 263

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2019] WASC 262

Seven Network Ltd v News Ltd [No 9] (2005) 148 FCR 1

Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179

The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 210

Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192

Vikas Rambal (ATF The Rambal Family Trust) v Pankaj Oswal (ATF The Burrup Trust) [2014] WASC 86

ACTING PRINCIPAL REGISTRAR MCDONALD:

1. This is an application made on behalf of a non-party, Mr Neale Prior of The West Australian (Applicant), pursuant to O 67B r 11 of the Rules of the Supreme Court 1971 (WA) (RSC) for access to the following documents filed in this action (which in these reasons I refer to as the Requested Documents):

   (a)the affidavit of Mr Brian Michael Adams sworn on 21 July 2021 (the Adams Affidavit);

   (b)the affidavits of Mr Pierce Tait McMahon sworn on 21 July 2021 (the First McMahon Affidavit) and 22 July 2021 (the Second McMahon Affidavit); and

   (c)the plaintiffs' outline of submissions filed 21 July 2021 (Plaintiffs' Submissions).

2. For these reasons, Mr Prior will be permitted to obtain a copy of the Requested Documents, subject to the conditions specified in [68] below.

The action - an overview

1. The plaintiffs are part of the BGC group of companies and acquired and provided building products and services to various companies operating in the building and construction industries.  The first plaintiff is a wholly owned subsidiary of the second plaintiff. The plaintiffs entered into supply contracts with the first defendant (Conview Victoria) for the purchase of steel products.  The second defendant, Ms Sharon Jing Chen, was the director of Conview Victoria and she and her husband, Mr Jie Lu, (the third defendant) were shareholders of Conview Victoria (together the Conview Defendants).  The fourth defendant, Ms Angela Lixia Huang, was an accountant employed by the second plaintiff who, with the General Manager of BGC Building Supplies, had dealings with the Conview Defendants.

2. The plaintiffs allege that the Conview Defendants gave bribes or secret commissions to the fourth defendant and the General Manager.

3. The action was commenced on 21 July 2021 and on the same day, the plaintiff filed an ex parte application for freezing orders and ancillary relief against the Conview Defendants pursuant to the RSC O 52A. The application for freezing orders was heard as a matter of urgency by Tottle J the following day.

4. The plaintiffs' freezing order application was supported by the Requested Documents.  The affidavits were sworn by Mr Adams who is the executive general manager of BGC Building Products Group and Mr McMahon who is a solicitor employed by the legal firm representing the plaintiffs.

5. The Requested Documents were read at the hearing of the ex parte application for freezing orders and were referred to by Tottle J in his Honour's decision in Lisson Nominees Pty Ltd Trading as BGC Builders Supplies as Trustee for the PBS Unit Trust v Conview Victoria Pty Ltd [2021] WASC 263(Lisson Nominees).[1]

The access application

[1] Lisson Nominees [6], [7], [18], [19], [23], [24].

1. On 2 August 2021, Mr Prior of The West Australian newspaper brought an application to access the Requested Documents (the Application).

2. All of the parties to the proceedings oppose the Application and filed the following documents pursuant to programming orders:

   (a)the Applicant's submissions dated 19 August 2021;

   (b)the affidavit of Jasmine Ashleigh Sims, a lawyer employed by the legal firm representing the Applicant, sworn 19 August 2021;

   (c)the plaintiffs' submissions dated 25 August 2021;

   (d)the Conview Defendants' submissions dated 25 August 2021;

   (e)the fourth defendant's submissions dated 25 August 2021;

   (f)the Applicant's submissions in reply dated 30 August 2021.

The RSC and access to documents

1. Order 67B creates a scheme of differing rights for access to court records for parties to a proceeding and non-parties. For non-parties, the categories of records which are able to be accessed as of right in proceedings commenced after 1 March 2018 are outlined in the RSC O 67B div 3. All of the Requested Documents fall outside the ambit of div 3. This means that access to the Requested Documents will require the court's permission under RSC O 67B Division 4.[2]

   [2] RSC O 67B r 8(a)

2. While Mr Prior is considered a 'media representative' for the purposes of RSC O 67B r 11, the Application is not one which the 'media manager' can determine access in accordance with RSC O 67B r 10.[3] 

   [3] RSC O 67B r 8(b).

3. For proceedings brought after 1 March 2018, O 67B of the RSC requires a non-party who seeks access to information or a record or other thing held by the court to bring an application in accordance with the RSC O 67B r 11.[4] If the court is satisfied the applicant needs permission to access the record sought, it must determine the application in accordance with the RSC O 67B r 9.[5] Order 67B r 9 specifies the matters to be considered in determining whether to grant access to a non-party.

   [4] RSC O 67B r 11(3).

   [5] RSC O67B r 13 (4).

4. Order 67B r 9(3) relevantly provides that the court must give permission to a non-party applicant if satisfied that:

   (a)the application -

   (i)relates to information or a record or other thing that was considered by the Court in the proceeding to which the application relates; or

   (ii)relates to the transcript of the whole or a part of a hearing in that proceeding that the applicant was entitled to attend; and

   (b)the application does not relate to an audio or audio-visual recording of a hearing in that proceeding; and

   (c)if the application relates to information or a record or other thing that was considered by the Court in that proceeding but was not admitted into evidence or was struck out - that giving permission would not prejudice or adversely affect any person; and

   (d)that giving permission would not breach -

   (i)any legislation; or

   (ii)an order made by a court in Australia; and

   (e)the arrangements necessary to give the applicant access would not -

   (i)be unreasonably expensive or time consuming for the Court or a party; or

   (ii)unduly impede the efficient conduct of the proceeding; and

   (f)there is no other good reason to refuse the application.

Legal principles - access

1. While the court retains an overriding discretion to allow access to documents or records,[6] the court must give permission if satisfied the factors outlined in the RSC O 67B r 9(3) have been met.

   [6] RSC O 67B r 4.

2. This represents a shift from the regime that existed under the RSC O 67 r 11, which was the predecessor to the current regime under the RSC O 67B. The predecessor to the RSC O 67B has been expressly retained by O 67B Division 7 for proceedings commenced before 1 March 2018. In relation to applications for access by non-parties in proceedings commenced prior to 1 March 2018, the documents which a non-party can inspect as of right are limited to those enumerated in the RSC O 67B r 16 (1)(a) to (d) and access by a non-party to any other documents requires 'leave of the court or a registrar'.[7]

   [7] RSC O 67B r 16(1)(e).

3. The authorities cited by the Applicant and the parties to this proceeding relate to access applications under the previous regime.  To obtain leave to access a document under the regime applicable to actions commenced prior to 1 March 2018, if the document had been read by the court as part of the decision making process (which includes the process for determining pre-trial applications), the court will lean in favour of disclosure if a legitimate interest can be shown for obtaining the documents and there is no good reason to refuse access.[8] 

   [8] Vikas Rambal (ATF The Rambal Family Trust) v Pankaj Oswal (ATF The Burrup Trust) [2014] WASC 86 [8] (Vikas Rambal).

4. Even if a document has been read and considered by the court, if the applicant does not have a legitimate purpose for accessing the document, access will not be granted.[9]  If a person seeks access to a document that has been filed but not read by the court, the principle of open justice is not engaged and access is only granted where there are strong grounds for thinking it necessary in the interests of justice to do so.[10]

   [9] The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 6] [2021] WASC 210 [24] (Hancock [No 6]).

   [10] Vikas Rambal [8] - [10].

5. Therefore, before leave may be granted to obtain access to a document filed in an action commenced prior to 1 March 2018 which has been considered by the court, the applicant is required to establish a legitimate interest in obtaining the document and the court needs to be satisfied there is no good reason to refuse access.[11] 

   [11] See Mineralogy Pty Ltd v Sino Iron Pty Ltd [2019] WASC 262 [15]; Vikas Rambal [10].

6. Under the regime applicable to cases commenced after 1 March 2018, provided the objective criteria in the RSC O 67B r 9(3)(a) to (e) are satisfied, the court's role is confined to determining whether there is no other good reason to refuse access.[12] 

   [12] RSC O 67B r 9(3)(f).

7. In June 2014, the Supreme Court issued a public discussion paper entitled 'Access to Court information'. The amendments to the RSC replacing O 67 r 11 with O 67B gave effect to the initiatives set out in that paper.

8. The Access to Court Information Discussion Paper,[13] in citing the need to review the regime governing access by parties and non-parties to information held on court files, included the following comments:

   2.3 RSC O67 r 11 has been in its current form since RSC came into force in 1971. In recent years, different courts have adopted different access regimes in their endeavours to reflect modern community expectations in the spheres in which they operate. For example, the access regime in the Magistrates Court in effect creates a presumption that non-parties can access all documents on the Court file. (Footnotes omitted).

   [13] Supreme Court of Western Australia, Access to Court Information, Discussion Paper (10 June 2014), 4.

9. The Discussion Paper referred to anecdotal reports about the perceived complexity and costs of applying for access under the RSC O 67 r 11 and the impact of such applications on judicial resources of the court.[14]  In relation to the records used during the course of a hearing, the following observations were made in the Discussion Paper:

   7.2Consistently with the open justice principle, it is proposed that there is to be a presumption in favour of non-parties having access to material that has been admitted into evidence or considered by, a judicial officer in the course of a hearing.

   7.3The drafting model proposed is the 'unless it has good reason not to' test in Magistrates Court Act 2004 (WA) (MCA) s 33(8)

   …

   7.4The amended RSC O 67 r 11 or its replacement will provide that on an application by a non-party the Court shall, unless it has good reason not to do so, give the person leave to inspect and obtain a copy of any material that has been admitted into evidence or considered by the Court in the course of a hearing.[15]

   [14] Supreme Court of Western Australia, Access to Court Information, Discussion Paper (10 June 2014), 4.

   [15] Supreme Court of Western Australia, Access to Court Information, Discussion Paper (10 June 2014), 12.

10. The RSC make no reference to the applicant having a legitimate interest and only to there being no good reason not to allow access. Since media representatives are generally considered to have a legitimate interest in accessing documents considered by the court,[16] the Application before me may not be the appropriate vehicle to determine if the bar to a non-party obtaining access to documents filed in actions after 1 March 2018 has been lowered by the introduction of RSC O 67B r 9(3). However, it appears the intention was to do so.

    [16] Hancock [No 6] [28].

11. To date there are no published reasons of this court in relation to applications pursuant to RSC O 67B r 9 and 11 for access to information considered by the court in a proceeding.[17] The authorities referred to by the Applicant and the parties must therefore be viewed in context of applications made in proceedings commenced prior to 1 March 2018 and to which the former O 67 r 11 RSC applied.

    [17] The decision in Lee v Australian Executor Trustees as Trustee of the Estate of the Late Ronald William Lee [2020] WASC 309, related to information not considered by the court.

12. In Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179, Le Miere J held:

    A consideration of those authorities, and the principles underlying them, discloses that as a general rule the court will grant third parties access to material that has been admitted into evidence or referred to, or considered by, the judge in the course of a hearing to which the public are admitted.  Affidavits, including annexures, and other material received by the court as evidence are considered by the court as part of its judicial function. That is so whether the affidavits were read out in the course of the hearing or read by the judge in private as part of his preparation for the hearing or consideration of his decision. Such material ought to be treated as if it had been read in open court and anyone ought to be allowed reasonable access to it in accordance with the principle of open justice.  The same principle applies to any other documents, such as pleadings or written submissions, that were referred to, or by, the judge in the course of the hearing.[18]

    [18] Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179 [21].

13. In Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 (Broad Construction Services), Le Miere J allowed a media representative access to an affidavit with video annexures which had been read and viewed by his Honour for the purposes of decision making but not read aloud or played in open court.[19] His Honour cited the following observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3)[2002] FCA 609 with approval:

    The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required.  In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge.  In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course.  It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved.  Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances.[20]

    [19] Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers & Anor [2007] WASC 133 (Broad Construction Services).

    [20] Broad Construction Services [42], citing Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 [7].

14. More recently, in The Hancock Family Memorial Foundation Ltd v Fieldhouse[No 6] [2021] WASC 210 (Hancock [No 6]), when considering the context in which a media organisation makes a non‑party application to access requiring leave of the court, Le Miere J referred to his comments in Broad Construction Services and observed that:

    In general, media organisations are better placed than others to demonstrate a good reason for seeking access. That is because, in general, granting access to media organisations advances the open justice principle.[21]

    [21] Hancock [No 6] [28].

15. In Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285 (Mineralogy), K Martin J adopted and applied the factors relevant to the exercise of the discretion as outlined by McLure J in Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192, (Van Stokkum), namely:

    (a)whether and if so to what extent the document has been referred to in open court;

    (b)the stage reached in the proceedings;

    (c)the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party);

    (d) the nature of the proceedings;

    (e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; and

    (f) the purpose for which access is required.[22]

    [22] Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 [27] (Van Stokkum).

16. The first of the Van Stokkum factors and the distinction made between documents that have been referred to in open court (or open chambers) and those that have not, [23] is now part of the test outlined in RSC O 67B r 9.

    [23] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285 [61] applying Van Stokkum.

17. The fact that the materials considered by the court but not read aloud or specifically referred to in the reasons does not provide a good reason not to give access.  In Hancock [No 6], Le Miere J referred to what he had held in Broad Construction Services:

    The applicant sought access to the affidavit and videos to assist the media to obtain a full and fair understanding of what had transpired.  This was so that informed reporting could occur without incomplete appreciation of source materials, and in a way which enabled the various matters which had come out in court, whether or not actually spoken out loud, to be understood in the full context of the case.  Indeed, I went on to state that the media organisation sought access for proper purposes and the principle of open justice favours giving the applicants leave to inspect and copy the affidavits for those purposes.[24]

    [24] Hancock [No 6] [26].

1. In Buswell v Carles [No 2] [2013] WASC 54, it was submitted by those opposing access that as The West Australian had already reported the hearing, the report demonstrated that the supporting documents were not required in order to gain a full and proper understanding of the hearing.  Le Miere J held this was not a good reason to refuse access stating:

   Their journalists consider that the application by the plaintiff is such a matter and they wish to see whether there is some more relevant material in the affidavit and written submissions.  It is not for me to determine that the material which was referred to in open court but not read out is not necessary for legitimate reporting.[25]

   [25] Buswell v Carles[No 2] [2013] WASC 54 [31].

2. The third Van Stokkum factor requires the court to consider the nature and seriousness of the allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party contained in documents requested by a non-party.  Nonetheless, it can be difficult for a court itself to assess, whether or not information within pleadings does have a potential to damage a party's commercial interests, if released openly.

3. In Mineralogy K Martin J held in relation to claims that material contained in pleadings was confidential and would reveal commercially sensitive information:

   As to the confidential content of a pleading, it can be difficult for a court itself to assess, whether or not information within pleadings does have a potential to damage a party's commercial interests, if released openly.  Here one party (the plaintiff) makes the assertion that components of its pleadings do embody sensitive confidential information.  It is difficult to evaluate, let alone gainsay that assertion at the present early stages of the action.  There is no present reason not to take an assertion of sensitive confidential information at face value.

   Later, as the litigation advances to trial, it may be more feasible, where pleaded allegations are better tested, for the court to obtain a better insight towards the assertions of confidentiality.  But until that happens, there is no reason to not respect what is articulated by a party to that effect.  That is the position as presently articulated by the plaintiff, as regards aspects of information in its amended statement of claim. [26]

   [26] Mineralogy [56] - [57].

4. Confidential documents pose an exception to the presumption in favour of granting a non-party access to court documents. In Broad Construction Services, Le Miere J quoted from Sackville J in Seven Network Ltd v News Ltd [No 9] (2005) 148 FCR 1 that:

   [U]nless the interests of justice require otherwise, this court would ordinarily take the view that a non-party should have access to all non‑confidential documents and other material admitted into evidence.[27]

   [27]Seven Network Ltd v News Ltd [No 9] (2005) 148 FCR 1 [27], cited in Broad Construction Services [43].

5. In Gray v Victoria (Department of Education and Early Childhood Development) [2017] FCA 353, the court was asked to make a suppression or non-publication order in relation to a settlement deed and affidavits and annexures filed in support pursuant to s 37AE of the Federal Court of Australia Act 1976 (Cth). The parties in that case bound themselves to keep confidential the terms of the settlement. Section 37AE required the court to consider that a primary objective of the administration of justice is to safeguard the public interest in open justice. Murphy J held:

   The concept of the administration of justice is multi-faceted: Rinehart at [39].It incorporates:

   (a)the public interest in the preservation of the confidentiality of the mediation process and the process of negotiation of the settlement of litigation: Sharjade Pty Ltd v RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd [2008] NSWSC 1347 at [34] (Bergin J); Cannon v Griffiths & Ors (No 2)[2015] NSWSC 1329 (Cannon) at [14] (Beech-Jones J);

   (b)the public interest in keeping people to their freely-entered bargain: Baltic Shipping Co v Dillon [1991] NSWCA 19; 22 NSWLR 1 at 9 (Gleeson CJ);

   (c)the public interest in the settlement of proceedings prior to trial: Oldham v Capgemini Australia Pty Ltd(No 2) [2016] FCA 1101 at [24] (Mortimer J); Reynolds v JP Morgan Administrative Services Australia Limited (No 2) (2011) 193 FCR 507; [2011] FCA 489 at [30] (Rares J).[28]

Disposition

[28] Gray v Victoria (Department of Education and Early Childhood Development) [2017] FCA 353 [22] (Gray).

1. For the purposes of the RSC O 67B r 9(3) it is accepted by all parties that:

   (a)the Requested Documents were considered by the court in the proceeding[29]  and were referred to by Tottle J in Lisson Nominees;[30]

   (b)the Application does not relate to an audio or audio-visual recording of the hearing in that proceeding;[31]

   (c)giving permission would not breach any legislation or order of a court;[32]

   (d)the arrangements necessary to give the applicant access would not be unreasonably expensive or time consuming for the court or a party or duly impede the efficient conduct of the proceeding.[33]

   [29] RSC O 67B r 9(3)(a)(i).

   [30] Lisson Nominees [7]; [8] - [16]; [19].

   [31] RSC O 67B r 9(3)(b).

   [32] RSC O 67B r 9(3)(d) (i) and (ii).

   [33] RSC O 67B r 9(3)(e) (i) and (ii).

2. Therefore, the key consideration before me in relation to RSC O 67B r 9(3) is whether there is 'no other good reason to refuse the application.'[34]

Settlement documents

[34] RSC O 67B r 9(3)(f).

1. The plaintiffs object to Mr Prior being provided with a confidential document which is annexed to the Adams Affidavit, namely a Deed of Settlement between the General Manager and his wife.[35]  The Deed contains the details and outcome of settlement and the parties to the Deed agreed to a confidentiality clause.[36]  The Deed also attaches a statutory declaration made by the General Manager.

   [35] Adams Affidavit [38]; Plaintiffs' submissions re Mr Prior's request pursuant to O 67B r 11 RSC filed 25 August 2021[8] ('Plaintiffs' submissions filed 25 August 2021').

   [36] Adams Affidavit [38].

2. As the freezing order application was made on an ex parte basis, the plaintiffs were required to give full and frank disclosure of all material facts including the Deed of Settlement. The plaintiffs submit that while the fact of settlement and summary particulars of the General Manager's statutory declaration were referred in the decision of Tottle J, the full terms and commercial particulars of the settlement were not.[37]

   [37] Plaintiff's submissions filed 25 August 2021 [8]

3. The plaintiffs submit that his Honour referred to the relevant details from the Deed of Settlement and, therefore, it is not necessary for a non-party to have access to the whole of the Deed of Settlement to facilitate an understanding of the judicial process, in promotion of those objects listed by McLure J in Van Stokkumthat might favour access.[38]

   [38] Plaintiffs' submissions filed 25 August 2021 [9].

4. There is a public interest in preserving confidentiality over settlement processes.[39] Those entering into settlement negotiations would expect weight to be given to the inclusion of a confidentiality clause in a deed of settlement, and the fact the settlement occurred prior to the commencement of this action.  Not only do those parties to the deed who settled prior to the action being commenced avoid trial, but they avoid being named as parties in any action at all. 

   [39] Gray [22].

5. While there is no evidence of the reasons for settlement in this case, one perceived benefit of reaching an agreement prior to the commencement of litigation is to avoid the consequences of open justice, the public nature of litigation and any embarrassment of alleged wrongdoing.  Such reasons are generally not sufficient to prevent access to information about a party,[40] but not being a party, the General Manager and his wife have not been heard in relation to this Application. The General Manager and his wife are not named in the publicly available writ and nor did the judge identify him or his wife in the reasons despite their names appearing in the documents sought.

   [40] Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 [7], [29].

6. As such, I consider there is a good reason to refuse access to the Deed of Settlement being, Annexure BA-9 to the Adams Affidavit and those paragraphs of the affidavits and submissions which give details of the information contained in the Deed as well as the statutory declaration of the General Manager, which is annexed to the Deed of Settlement. For the same reasons I consider there is a good reason to refuse access to identifying information about the General Manager and his wife, their residence and bank accounts, at this stage of the proceedings.  That may not be sustainable in the event the General Manager or his wife become witnesses in the proceeding.[41]

Confidential commercial information

[41] RSC O 67B r 6(2).

1. No application to restrict access to the documents has been brought by the parties pursuant to the RSC O 67B r 5. Once the defendants were on notice of the freezing order application and the orders that were made, any of the defendants could have made an application to the Judge pursuant to the RSC O 67B r 5 that access to confidential information be restricted. Nevertheless, even in the absence of any restriction application, when determining applications for access a distinction is to be made between confidential and non-confidential documents.

2. The plaintiffs submit that the following documents contain information of a commercially sensitive nature which, if disclosed publicly, may be prejudicial to the plaintiffs' commercial interests:

   (a)the potential value of the harm suffered by the plaintiffs as a result of the wrongdoing alleged: Adams Affidavit at par 39 and page 94; First McMahon Affidavit at page 10, Second McMahon affidavit at par 9;

   (b)the commercial terms of the plaintiffs' supply contracts, which if made public may be used by suppliers and competitors to the disadvantage of the plaintiffs: Adams Affidavit at Annexure BA-3;

   (c)the allegations of liability by the first to third defendants:  First McMahon Affidavit at pages 20 to 27.[42]

   [42] Plaintiffs' submissions filed 25 August 2021 par 13.

3. The Conview Defendants also claim the Requested Documents contain confidential information regarding contracts entered into with the plaintiffs.[43]

   [43] First, second and third defendants' submissions filed 17 August 2021 par 18.

4. None of the parties have filed any evidence of the potential damage to commercial interests. 

5. While it can be difficult to accurately assess whether or not the information within the Requested Documents will damage the parties' commercial interests if released openly, I am not satisfied that such a 'potential risk' can justify the rebuttal of the presumption in favour of granting a non-party access in its entirety; it does not constitute a good reason to wholly refuse the Application in accordance with RSC O 67B r 9(3)(f).

6. With appropriate redactions to certain information contained within the Requested Documents the risk can be mitigated, whilst preserving the principle of open justice. As such I would refuse access to the plaintiffs' contracts annexed to the Adams Affidavit at Annexure BA-3 and allow redactions of:

   (a)paragraph 39 of the Adams Affidavit;

   (b)page 10 par 4 of the First McMahon Affidavit (Annexure PTM‑1);

   (c)pages 20 to 27 of the First McMahon Affidavit (Annexure PTM-2); and

   (d)paragraph 9 of Second McMahon Affidavit.

7. The paragraphs of the Plaintiffs' Submissions which the Conview Defendants seek to restrict access appear, on their face, to be the details of the allegations made and are not commercially sensitive information.[44]  The fact those allegations have the potential to damage the commercial and private interests of the defendants is not the same as disclosing trade and in-house information that is commercially sensitive and would give competitors access to information that would give them an advantage.  In Buswell v Carles [No 2] Le Miere J stated in relation to objections made to an application by The West Australian to the written submission of the parties:

   The media organisations also seek access to the written submissions of the parties.  Normally, outlines of submissions are prepared by counsel to enable the court, when preparing for a hearing, to identify and focus on the essential issues.  The document also serves to assist counsel when considering and advancing their oral submissions at the hearing although on occasions points raised in the written submissions are not pursued.  Generally speaking, submissions are orally advanced by counsel in open court where the public and the media may hear and report them.  The situation which often arises, and which arose here, is that counsel informs the court that they rely upon their written submissions and in the course of oral submissions make reference to particular paragraphs or passages in the written submissions.  In those circumstances the court treats the contents of the written submissions as if they had been made in oral argument in open court.  The principle of open justice leads to the conclusion that the written submissions relied upon by counsel and treated by the court as forming part of their oral submissions should be disclosed if and when a request to do so is received.[45]

   [44] Plaintiffs' submissions filed 25 August 2021 pars 28 to 33.

   [45] Buswell v Carles[No 2] [26].

8. Save for the redaction of the names of the General Manager and his wife, there is no good reason to refuse access to the plaintiffs' submissions.

Untested allegations

1. The Conview Defendants claim potential damage to their private and commercial interests if the following material was released given the seriousness of the allegations contained therein:

   (a)Plaintiffs' submissions, pars 11, 18, 21, 26, 31 to 39; and

   (b)Adams Affidavit pars 12, 19 to 21, 28. [46]

   [46] First, second and third defendants' submissions filed 25 August 2021 pars 12 to 13.

2. The Conview Defendants and the fourth defendant rely on the ex‑parte nature of the application which meant there was no opportunity for them to respond, defend or challenge the allegations. Given the seriousness of the allegations, the potential prejudice is magnified.  The risk that the Applicant is unlikely to accurately or completely refer to the information within the Requested Documents or will refer to them in any subsequent article as though they were the incontrovertible truth of the facts the subject of them and the court has no power to supervise this, is said to be a good reason to refuse access.[47]

   [47] Fourth defendant's submissions filed 25 August 2021 par 6(b).

3. Both the plaintiffs and the Conview Defendants rely on Mineralogy in which K Martin J relied on the third factor in Van Stokkum and refers to Barratt J in ASIC v Rich [2002] NSWSC 198 (relying on Santow J in eisa Ltd v Brady [2000] NSWSC 929):

   I do not see how the fundamental principles of open justice and access by the public to proceedings in open court will be enhanced or promoted by facilitation of media coverage of as yet untested allegations which have not been aired in court and may never be, at least in the form in which they now exist. On the other side of the coin, access by the media to those untested allegations at this point has a clear potential to cause serious prejudice to the defendants who intend to put their countervailing contentions on the record in due course.[48]

   [48] ASIC v Rich [2002] NSWSC 198 [18] cited in Mineralogy [37].

4. However, K Martin J in Mineralogy contrasts Santow J's approach in eisa Ltd v Brady to that in Tuqiri v Australian Rugby Union Ltd in which Einstein J, more recently, observed:

   With all due respect to the eminence and standing of those two very well respected and experienced judges, I disagree with their observations. In that regard I agree with Rares J who observed in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836: In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings [29].[49]

   [49] Mineralogy [38].

5. K Martin J in Mineralogy goes on to conclude:

   Assessing the first instance New South Wales cases, there seems to present a degree of tension over the liberality of an approach towards allowing access by non-parties to documents that reside on a court file, but which have not been referred to in court or in chambers.[50]

   [50] Mineralogy [39].

6. Both Santow J in eisa Ltd v Brady and K Martin J in Mineralogy considered applications for access to pleadings not yet considered by the court, unlike in the present Application.  In this case, access is sought to affidavit material read by the court, not pleadings which can be amended or struck out or the matters settled long before they are considered by the court.

7. The allegations against the defendants are set out in the publicly available writ and the court’s reasons for decision in Lisson Nominees.  Self-evidently when allegations of fraud and dishonesty are alleged it is prejudicial to the party against whom the allegations are made.  However, the authorities do not preclude access until such time as the allegations have been tested in court. If that was the case, no access could be granted until the outcome of litigation or interlocutory application is known.

8. It is not for the court to vet what material referred to in open court but not read out loud is necessary for legitimate reporting in the absence of a good reason to do so.[51]

   [51] Buswell v Carles [No 2] [31].

9. The contention that the court should supervise what is and what is not reported by the media would be contrary to principles applied in this court, including those of Le Miere J in Hancock [No 6], that granting access to media organisations in fact advances the open justice principle.

10. On balance, I am not satisfied that the fact the freezing order application was ex parte and therefore was uncontested is a good reason to refuse the Application.

Personal information

1. The Conview Defendants submit that access to the Requested Documents should be refused as they contain confidential information such as their personal residential addresses and parties related to them, namely:[52] 

   (a)Paragraphs 28 to 33 and Annexure A of the Plaintiff's Submissions;

   (b)Annexure BA-2 and BA-3 to the Adams Affidavit;

   (c)Paragraphs 8 to 9 of the Second McMahon Affidavit.

   [52] First, second and third defendants' submissions filed 25 August 2021 [18].

2. I am not prepared to redact the residential addresses of the defendants as described in the plaintiffs' submissions at pars 28 to 33. It is the sale of that property that gave rise to the application for a freezing order, and therefore, goes to the heart of the Application.  It is not an incidental reference to personal addresses of persons not otherwise named in the action.  The addresses are also listed on the writ of summons which is publicly available.  For that reason, (save for the redactions in relation to the names of the General Manger and his wife) there is no good reason to refuse access to those parts of the Plaintiffs' Submissions and the Adams Affidavit that detail the nature of those allegations and the property of the defendants to which the application relates. 

3. There is no good reason to refuse access to Annexure BA-2 to the Adams Affidavit, being the Annual Return of Hong Kong Weiching International Co Limited -  a company with whom the second and third defendant are connected, evidence of which was referred to in Lisson Nominees.[53]

   [53] Lisson Nominees [10] - [12]; [23].

1. The fourth defendant similarly submits that the affidavits variously refer to personal and sensitive information of the fourth defendant including her marriage certificate, banking, employment and address details.[54]  I have already refused access to Annexure BA-3 and par 9 of the Second McMahon affidavit for reasons stated elsewhere.

   [54] Fourth defendant's submissions filed 25 August 2021 [5(d)].

2. The fourth defendant's address and place of employment is identified on the publicly available writ and her employment with the plaintiffs would appear to be central to the allegations.  It is not stated what are the personal banking details referred to, but it would appear that transactions between the first to third defendants and the fourth defendant are also relevant to the allegations.  In any event, the fourth defendant has not stated why her private or commercial interests would be affected. 

3. The marriage certificate of the fourth defendant is not a publicly available document.  It is not referred to in the reasons in Lisson Nominees.  It contains information about the fourth defendant's spouse and both the fourth defendant's and her spouse's parents.  I therefore consider there is a good reason to refuse access to the fourth defendant's marriage certificate.

Conclusion and orders

1. Mr Prior will be granted leave to obtain copies of the Requested Documents, subject to the following redactions:

   (a)all references to the name, address and bank accounts of the General Manager and his wife in the Requested Documents;

   (b)Plaintiffs' Submissions paragraph 14;

   (c)Adams Affidavit pars 28, 38 - 39; page 66 (Fourth Defendant's Marriage Certificate); Clause 4.6 at page 94 and Annexure BA‑3;

   (d)First McMahon Affidavit Clause 4 on page 10; pages 20 to 27;

   (e)Second McMahon Affidavit par 9.

2. There will be liberty to apply to ensure that the redactions are in accordance with these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS

Associate to Acting Principal Registrar McDonald

5 NOVEMBER 2021