Mineral Resources Limited v Destec Pty Ltd [No 3]
[2023] WASC 104
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MINERAL RESOURCES LIMITED -v- DESTEC PTY LTD [No 3] [2023] WASC 104
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 30 MARCH 2023
FILE NO/S: CIV 1465 of 2020
BETWEEN: MINERAL RESOURCES LIMITED
First Plaintiff
CRUSHING SERVICES INTERNATIONAL PTY LTD
Second Plaintiff
AND
DESTEC PTY LTD
First Defendant
STEPHEN LESLIE WYATT
Second Defendant
Catchwords:
Practice and procedure – Application by defendants for orders restricting inspection of documents produced on subpoena by third party – Whether certain information contained in documents is confidential – Whether restrictions to inspection are appropriate – Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B r 9
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Bennett |
| Second Plaintiff | : | Bennett |
| First Defendant | : | HFW Australia (Perth) |
| Second Defendant | : | HFW Australia (Perth) |
Cases referred to in decision:
AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60
Civic Video Pty Ltd v Paterson [2013] WASCA 107
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Re Forge Group Construction Pty Ltd (in Liq); Ex parte Jones [No 2] [2016] WASC 87
HILL J:
On 31 March 2021, the court issued a subpoena to Rio Tinto Ltd (Rio Tinto) at the request of the plaintiff. On 18 March 2022, Rio Tinto produced a number of documents in answer to the subpoena.
The defendants object to a number of the documents being inspected by the plaintiffs on the basis of their contention that these documents contain information which is confidential and commercially sensitive to the defendants. Based on the pleaded claims, the plaintiff, quite properly, accepts that it is a trade rival of the first defendant. For this reason, at present, these documents are the subject of an interim confidentiality regime pursuant to orders made on 22 March 2022 (Interim Confidentiality Orders).
There are two issues that remain in dispute between the parties namely:
(a)whether references to the names, addresses, and email addresses of employees of the first defendant, and in particular two employees, should be the subject of the Interim Confidentiality Orders; and
(b)whether the Interim Confidentiality Orders should apply to proposed redactions to six specific documents and duplicates or near duplicates of these documents.
For the reasons that follow, it is my view that:
(a)the names and email addresses of the employees of the first defendant should not be redacted; and
(b)the specific redactions sought to be made by the defendants to the six specific documents and their duplicates or near duplicates seek to redact information which is confidential to the defendants and should remain subject to the Interim Confidentiality Orders.
Evidence on the application
In support of their application, the defendants relied on an affidavit of Morne Van Zyl filed 5 May 2021 and three confidential affidavits of Stephen Leslie Wyatt filed 1 June 2022, 15 August 2022 and 15 September 2022.
In opposing the application, the plaintiff relied on two affidavits of Timothy John Williams filed 2 September 2022; one of which is confidential.
Because a number of the affidavits relied upon for the application are confidential, in these reasons, I have referred to the documents and information in general terms so as not to impact on the confidentiality.
Relevant procedural history
On 2 April 2020, the first plaintiff commenced civil proceedings CIV 1465 of 2020 against the first defendant. On the same date, the plaintiffs commenced civil proceedings CIV 1466 of 2020 against the second defendant. On 8 December 2020, orders were made to consolidate these proceedings.
The current pleading of the plaintiffs is an amended consolidated statement of claim dated 21 January 2022. The first plaintiff pleads that it entered into two agreements with the first defendant: a general services agreement for the provision of consultancy services on or about 17 April 2015; and a separate general services agreement for the provision of engineering and modelling services on or about 16 March 2017. The first plaintiff alleges that in breach of these agreements, the first defendant has failed to return all of the first plaintiff's documents then in its possession. By way of relief, the first plaintiff seeks delivery up of any documents which are the property of the first plaintiff, an injunction to restrain the first defendant from using or disclosing any information in the documents, and damages.
In respect of the claim against the second defendant, the plaintiffs plead that on 26 June 2006, the second plaintiff and the second defendant entered into an executive services agreement. This agreement was terminated in about February 2015, following which the second defendant provided consulting services to the plaintiffs under a general services agreement. The plaintiffs plead that the second defendant has breached his employment agreement and the general services agreement by retaining intellectual property and confidential information of the plaintiffs. By way of relief, the plaintiffs seek delivery up of any documents which are the property of the plaintiffs, an injunction to restrain the second defendant from using or disclosing any information in the documents, and damages.
In broad terms, the alleged intellectual property and confidential information concern the design, manufacture and use of fixed and mobile crushing, screening and processing plants, as well as pricing information. The plaintiffs contend the defendants have retained and misused the plaintiffs' confidential information in establishing and conducting a business in competition with the plaintiffs.
The statement of claim specifically pleads that the plaintiffs and the first defendant are trade competitors,[1] both the second plaintiff and first defendant submitted tenders to Rio Tinto. The tender was awarded to the first defendant,[2] and that the defendants have used confidential information of the plaintiffs to design and develop modular crushing, screening and processing plants and to tender for work with Rio Tinto.[3]
[1] Statement of claim [8B.3].
[2] Statement of claim [8D], [8E], [8F].
[3] Statement of claim [27.6].
The defendants admit, in their amended consolidated defence dated 2 March 2022, that they are trade competitors of the plaintiffs, and that the first defendant has tendered for and won work with Rio Tinto.[4] The defendants deny they have used the confidential information as alleged by the plaintiffs.[5]
[4] Defence [8B].
[5] Defence [26].
On 31 March 2021, at the request of the plaintiffs' solicitors, the court issued two subpoenas, including a subpoena to Rio Tinto. The subpoena to Rio Tinto sought production of documents related to the supply or proposals to supply crushing plants or services by the defendants to Rio Tinto from 1 January 2020.
On 12 April 2021, the defendants' solicitors filed an application to set aside these subpoenas. On 21 October 2021, Acting Registrar Hosking ordered that the subpoena to Rio Tinto be set aside.
The plaintiffs appealed against this decision, which was listed for hearing on 28 January 2022. Shortly prior to the hearing, on 21 January 2022, the plaintiffs filed an amended consolidated statement of claim. As a consequence of these amendments, the orders of Acting Registrar Hosking were set aside and the time for Rio Tinto to comply with the subpoena was extended to 18 March 2022.
On 22 March 2022, orders were made restricting access to the documents produced by Rio Tinto to external solicitors, counsel and independent experts engaged by the plaintiffs, as well as Mr Williams, the general counsel of the first plaintiff. On 4 May 2022, orders were made requiring the defendants to provide the plaintiffs' solicitors with a list of documents which they contended should continue to be the subject of the confidentiality orders, or be redacted, for the parties to exchange submissions and for any remaining issues to be determined on the papers.
Since that time, the parties have conferred in relation to the matter and the issues between them have substantially narrowed.
At present, only two issues remain between the parties: first, whether the names and email addresses of employees of the defendants should be redacted; and second whether the redactions to a limited number of documents should be maintained. In this regard, I note the plaintiffs accept that some of the redactions that have been made to these documents by the defendants (which are marked in green) are appropriate.
Legal principles governing inspection of subpoenaed documents
Pursuant to O 36B r 8A(2) of the Rules of the Supreme Court 1971 (WA) (Rules), on a request from a party with a sufficient interest in the documents produced under subpoena, the court may make directions for the inspection of any documents produced in compliance with the subpoena. It was not in dispute that the defendants were parties with a 'sufficient interest' in the documents produced by Rio Tinto.
Inspection by parties of documents produced pursuant to a subpoena is governed by O 36B r 9 of the Rules. Order 36B r 9 relevantly provides that:
(2)After the date and time for production specified in the subpoena, a registrar, subject to –
(a)any direction made or relief granted under rule 8A; and
(b)rule 8A(6) and this rule,
may permit any party to the proceeding to inspect, copy or remove any document or thing produced under the subpoena.
(3)A document or thing produced cannot be removed from the Registry except on a written application that is signed by the solicitor for a party and approved by –
(a)a registrar; or
(b)a Court officer authorised in writing for the purposes of this subrule by the Chief Justice.
(4)An application made under subrule (3) may be approved with or without conditions, or refused.
In Boase v Axis International Management Pty Ltd [No 3], Beech J summarised the relevant principles governing inspection of subpoenaed documents in the following terms:[6]
The first question is whether the documents, or the passages to which objection is taken, have apparent relevance to the litigation.
Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross‑examination.
[6] Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498 [10] - [11]. See also Re Forge Group Construction Pty Ltd (in Liq); Ex parte Jones [No 2] [2016] WASC 87 [18] - [19].
His Honour then summarised the grounds on which the court will refuse inspection of documents or place limitations or restrictions on the inspection in the following terms:[7]
If a document is apparently relevant, inspection will usually be permitted, even though it is not admissible as it stands and the party seeking the document has not undertaken to tender it or use it in cross‑examination.
Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information. However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection (citations omitted).
[7] Boase v Axis International Management Pty Ltd [No 3] [19] - [21].
Where a party objects to inspection of documents on the basis of a claim of confidentiality, the courts recognise that there is some need to balance competing interests. Ultimately, the public interest in the administration of justice must prevail. Where parties are trade rivals, this will be a relevant consideration in determining what, if any, restrictions ought be imposed upon the inspection of documents.[8]
[8] Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60 [9].
In Mobil Oil Australia Ltd v Guina Developments Pty Ltd, Hayne JA said:[9]
Where it is said that documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise.
Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender?
Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?
…
Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts.
[9] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38 - 39.
Each case must be determined on the facts of that particular case. In determining whether a document or documents should attract additional protection (beyond the protection of the substantive obligation that the information is not to be used other than for the purpose of the proceedings),[10] it is relevant to consider the age of the information; the identity of the persons who will inspect the documents; the reason or reasons that inspection is necessary; the degree of commercial sensitivity involved and the extent of any prejudice to the party producing the documents or whose documents are the subject of production.[11]
[10] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.
[11] Civic Video Pty Ltd v Paterson [2013] WASCA 107 [30].
The onus of establishing a claim for confidentiality is on the person asserting the claim. If the claim for confidentiality is established, the question as to what restrictions should be placed on the inspection of the document is a balancing exercise. Competing considerations include the risk of inadvertent or accidental disclosure, the extent to which the proposed person will have occasion to use the information to further a party's commercial interests, and whether the person to whom it is proposed to disclose the information owes or may owe contractual, statutory or fiduciary obligations to their principal on the one hand and the benefits of a party having access to all relevant information to enable appropriate advice to be given and informed instructions received on the other hand.[12]
[12] AstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 [10].
In exercising discretion whether or not to permit inspection of the subpoenaed documents, the principles of case flow management and the objects of O 1 r 4B of the Rules must be kept in mind.[13]
[13] Boase v Axis International Management Pty Ltd [No 3] [21]; Re Forge Group Ltd; Ex Parte Jones [19].
Apparent relevance of documents
It was not in dispute that the documents that were the subject of this application had apparent relevance to the issues in these proceedings. This was, in my view, appropriate given the issues in dispute between the parties and the evidence of Mr Wyatt at [20] ‑ [21] of his confidential affidavit filed 1 June 2022.
I accept that on the face of the documents in dispute, which have been annexed to the first two confidential affidavits of Mr Wyatt, each has apparent relevance to the issues in the proceedings.
The only issue between the parties was whether any of the information contained in the documents was confidential.
Names of employees
A number of the documents contain the names, addresses, telephone numbers and email addresses of certain employees of Destec (Employee Details). The plaintiffs do not challenge the redaction of the mobile phone numbers of these employees but says their names and email addresses are not confidential and should be disclosed.
Mr Wyatt's evidence is that there is a shortage of suitably qualified people in the industry and that the plaintiffs have, on occasions, actively attempted to poach employees from Destec. Three examples of this are set out in his affidavit filed 1 June 2022.[14] The defendants say that they are concerned that if this information is made available to the plaintiffs, the plaintiffs will be able to contact and attempt to poach the first defendant's employees. In addition, Mr Wyatt says that a number of the documents refer to identity and contact details of two particular employees of Destec, in circumstances where it is not publicly known these people are employed by Destec.
[14] Affidavit of Stephen Leslie Wyatt filed 1 June 2022 [58].
The plaintiffs oppose any application by the defendants to redact this information. The plaintiffs deny they have attempted to poach the first defendant's employees. Mr Williams has explained the circumstances in which each of the employees referred to by Mr Wyatt came to be employed by the plaintiffs.[15] They say the effect of the defendants' application is to attempt keep confidential from the plaintiffs the fact that these two people are employed by the first defendant. Each of these individuals was either previously employed or retained by the plaintiffs. The plaintiffs contend these people were involved in matters which are relevant to the issues in these proceedings.
[15] Affidavit of Timothy John Williams filed 2 September 2022 [8] ‑ [11].
For the following reasons, I do not accept that the names or email addresses of any employees are confidential or that they should be redacted from the documents subpoenaed from Rio Tinto.
First, I do not accept that, in most cases, the names and email addresses of employees comprise confidential information. Apart from the two specific employees which I address below, no basis was advanced by the defendants in support of the contention this information was confidential. The only basis on which it was submitted that this information should not be disclosed to the plaintiffs was a concern that the plaintiffs could use the information to further their own commercial interests by poaching the employees. I note that the plaintiffs deny they have poached any previous employees of the first defendant. This dispute cannot be resolved on an interlocutory application. In any event, the fact that this information may be of interest to the plaintiffs does not make it confidential.
Second, the documents produced on subpoena by Rio Tinto can only be used for the purposes of these proceedings. Any attempt to use this information to poach employees of the first defendant would be a breach of the substantive obligation owed to the court as to the use of these documents. No basis was advanced by the first defendant to suggest that the documents would be misused in this manner.
Third, the submissions of the defendants proceed on the basis that it was for the plaintiffs to explain why disclosure of this information was required. This misstates both the onus and the task before the court. As set out above, the onus is on the party asserting confidentiality to make good its claim. It is only when the party has established the information is confidential that the court will consider what, if any, additional protections are required other than the substantive obligation owed to the court. I am not satisfied that the defendants have discharged their onus to establish the names and addresses of most employees are confidential. On this basis, I do not consider that this information should be redacted.
In respect of the two specific named employees, the evidence of Mr Wyatt is that it is not public knowledge that either of these people are employed by the first defendant. This information is not disclosed on these employees' LinkedIn pages.[16] In this regard, I am satisfied that there is a basis on which the court could conclude that the fact that these employees are employed by the first defendant is not generally known and that this information is confidential. However, this, of itself, does not mean that any restrictions should be placed on the inspection of the documents which disclose the names and email addresses of these employees.
[16] Affidavit of Stephen Leslie Wyatt filed 1 June 2022, 'SW-35', 'SW-36'.
The only basis put forward by the defendants to support the claim for restrictions is a concern that the plaintiffs may attempt to poach these employees. For the reasons set out above, I do not consider this concern outweighs the public interest in the administration of justice and the needs of the plaintiffs to be able to provide informed instructions to their solicitors. For this reason, I do not consider the names and addresses of these two employees should be redacted from any subpoenaed documents.
Disputed Documents
There are 26 disputed documents comprising six primary disputed documents and near duplicates of these documents.
RTA.0001.0001.0070[17]
[17] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-42'.
This document is a letter from Destec to Rio Tinto dated 20 January 2021 in relation to the proposed supply of a Destec plant to the Gudai‑Darri project. There are seven duplicate or near duplicates of this document, being RTA.0001.0001.0072, RTA.0001.0001.0551, RTA.0001.0001.0553, RTA.0001.0001.1428, RTA.0001.0001.1430, RTA.0001.0001.1457, and RTA.0001.0001.1459.
The dispute between the parties concerns two proposed redactions on page one of the letter highlighted in yellow under the heading 'Compact and Modular design – time, cost and safety improvements'.
Mr Wyatt's evidence is that this information contains commercially sensitive processes and procedures adopted by the first defendant for the construction and commissioning of its plant, which contributes to the first defendant's competitive advantage. The defendants point to the similarity of the information contained in the proposed redactions to the agreed redactions on page five of the document[18] in support of their contention that this information is confidential and should be redacted.
[18] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-42', p 81.
Mr Wyatt says that if this information is provided to the plaintiffs, he believes the plaintiffs would use this information against the first defendant, including by adapting their processes and design of their own plant.
In contrast, the plaintiffs say the information is not sufficiently detailed or specific to be confidential. They deny that it would enable the plaintiffs to adapt their own practices or design, or enable them to design new plants to compete with the first defendant.
In the letter, the crushing and screening solution is described as the 'only one in Australia' with particular characteristics. It subsequently describes the basis on which it is contended that transport to site is quick and efficient. In my view, both of these matters summarise features of the first defendant's equipment which are said to be unique and provide it with a competitive advantage, including due to the lower costs associated with transport.
I accept the defendants' submission that this information, while not specific, is commercially sensitive. I also accept that if this information is revealed to the plaintiffs, as their trade rivals, this information will not be forgotten, and will give the plaintiffs information about the characteristics of the first defendant's equipment which are described as unique to the first defendant. Except through the compulsive processes of the court, the plaintiffs would otherwise not be entitled to access this information.
In my view, the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made. As a result, the words on the first page of the letter highlighted in yellow should remain the subject of the Interim Confidentiality Orders.[19]
RTA.0001.0001.0102[20]
[19] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-42', p 77.
[20] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-43'.
This document is an email chain between Destec and representatives of Rio Tinto between 30 and 31 March 2021. There are eight duplicate or near duplicates of this document, being RTA.0001.0001.0186, RTA.0001.0001.0196, RTA.0001.0001.0248, RTA.0001.0001.0573, RTA.0001.0001.0983, RTA.0001.0001.0984, RTA.0001.0001.0998, and RTA.0001.0001.1098.
The defendants seek two redactions to these documents: first, the column specifications used in the first defendant's plant; and second, the number of personnel required on site during construction of the plant.
Mr Wyatt's evidence is that the design of the plant is novel and is the subject of a patent application.[21] He says that the design of the plant, together with its component parts, is confidential and provides it with a competitive advantage because no other crushing and screening plant with the same throughput capacity can be mobilised and delivered to site as quickly as the first defendant's plant. In relation to the number of personnel required on site, Mr Wyatt's evidence is that the cost of personnel contributes to Destec's competitive advantage. This is because these costs contribute to Destec's labour costs, the costs to the client (including accommodation and flight costs of these personnel) and the risk associated with commissioning and constructing the plant.
[21] The plaintiffs deny that the plant is the subject of a patent application (Amended Statement of Claim [26A]). In response, the defendants plead that a patent application was filed on or about 23 June 2021 (Amended Defence [25A]). This factual dispute cannot be resolved on this interlocutory application.
Mr Wyatt says that if this information is provided to the plaintiffs, he believes the plaintiffs would be able to use this information against the first defendant, including by adapting their processes and design of their own plant, and reducing their labour costs, to better compete with the first defendant.
The plaintiffs say that this information is not sufficiently unique to be confidential or deserving of protection above the usual substantive undertaking.
I accept the defendants' submission that the information sought to be redacted is commercially sensitive. A significant issue between the parties in these proceedings is the design of the plants that each party manufactures. Both contend that the information about the design and production of their plants is confidential. I also accept that personnel costs contribute to the financial cost of a project, which is also a matter which is confidential. If this information is revealed to the plaintiffs, as the first defendant's trade rivals, this information will not be forgotten. It will give the plaintiffs access to information about the characteristics of the first defendant's equipment, as well as an aspect of the costs associated with the construction and commissioning of the plant, that the plaintiffs would otherwise not be entitled to.
For these reasons, I consider that the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made and that the words on pages three and four of the email highlighted in yellow (apart from the name and email address of the employee) should remain the subject of the Interim Confidentiality Orders.[22]
RTA.0001.0001.0376[23]
[22] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-43', p 95, 96.
[23] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-44'.
This document is an email chain between Mr Rushton of Destec and representatives of Rio Tinto between 15 and 16 February 2021. There are four duplicates or near duplicates of this document, being RTA.0001.0001.0007, RTA.0001.0001.0369, RTA.0001.0001.0722, and RTA.0001.0001.1162.
Mr Wyatt's evidence is that the information, which is sought to be redacted, discloses design features of the first defendant's plant. Mr Wyatt says that if this information is provided to the plaintiffs, he believes the plaintiffs would use this information against the first defendant, including by adapting their processes and design of their own plant.
The plaintiffs say the information sought to be redacted describes the scope of work to be undertaken by the first defendant which is not sufficiently confidential to warrant protection of special orders.
I accept the defendants' submission that the information sought to be redacted does not solely refer to the scope of work to be performed by the first defendant but contains details of the design features of the first defendant's plant, including the proposed number of component parts.
Consistent with the views that I have already expressed, I consider that this information is commercially sensitive. If this information is revealed to the plaintiffs, it will give the plaintiffs access to information about the characteristics of the first defendant's equipment that the plaintiffs would otherwise not be entitled to.
For these reasons, I consider that the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made and that the information highlighted in yellow (apart from the name of the employee which I have addressed separately) should remain subject to the Interim Confidentiality Orders.
RTA.0001.0001.0432[24]
[24] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-45'.
This document is an email chain between an employee of Destec and representatives of Rio Tinto between 22 and 23 February 2021. There is one duplicate or near duplicate of this document, being RTA.0001.0001.0425.
Mr Wyatt's evidence is that the information sought to be redacted disclose the terms on which the first defendant would undertake certain work for Rio Tinto and how the costs are calculated. Mr Wyatt says that these terms are 'bespoke and competitive terms' that are offered by the first defendant to Rio Tinto to enable it to compete in the market against the plaintiff. If this information is provided to the plaintiffs, he believes the plaintiffs would use this information against the first defendant, including by adapting the terms and costs on which they submit tenders.
The plaintiffs say that the information sought to be redacted does not disclose any commercial negotiations or terms of the arrangements between the first defendant and Rio Tinto. Where documents contain this information, the plaintiffs have agreed these documents fall within the confidentiality orders made by the court.
I accept the plaintiffs' submission that the information sought to be redacted does not disclose the commercial negotiations or arrangement between the first defendant and Rio Tinto. However, I accept that this information does explain the basis on which the proposed rate has been calculated by the defendants.
In my view, the basis on which the first defendant has calculated the rates it charges Rio Tinto is commercially sensitive. If this information is revealed to the plaintiffs, it cannot be forgotten. I accept that access to this information may cause prejudice to the first defendant as it would give the plaintiffs access to information about the basis on which the first defendant calculates its rates that the plaintiffs would otherwise not be entitled to.
For these reasons, I consider that the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made and that the information highlighted in yellow (apart from the name of the employee which I have addressed separately) ought to remain the subject of the Interim Confidentiality Orders.
RTA.0001.0001.0440[25]
[25] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-47'.
This document is an email chain between Mr Rushton of Destec and representatives of Rio Tinto on 1 February 2021. There is one duplicate or near duplicate of this document, being RTA.0001.0001.1175.
Mr Wyatt's evidence is that the information sought to be redacted on pages one and two of the email discloses the first defendant's costs of design, idle equipment and personnel and the negotiation of the contractual arrangements between them. Mr Wyatt says that these terms are 'bespoke and competitive terms' offered by the first defendant to Rio Tinto. In respect of the proposed redactions on the second page of the document under heading B, these redactions disclose design features of the first defendant's plant.
If this information is provided to the plaintiffs, Mr Wyatt believes the plaintiffs would use this information against the first defendant, including by adapting the terms and costs on which they submit tenders, as well as the design of their equipment.
The plaintiffs say that the information sought to be redacted does not disclose any commercial negotiations and is not confidential.
I accept the plaintiffs' submission that the information sought to be redacted does not disclose the commercial negotiations between the first defendant and Rio Tinto. However, I accept that this information sought to be redacted explains the basis on which the first defendant has calculated the proposed rate.
Consistent with the views I have expressed above, I consider the basis on which the first defendant has calculated the rates it charges Rio Tinto is commercially sensitive. If this information is revealed to the plaintiffs, it cannot be forgotten. I accept that access to this information may cause prejudice to the first defendant as it would give the plaintiffs access to information about the basis on which the first defendant calculates its rates that the plaintiffs would otherwise not be entitled to.
For these reasons, I consider that the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made and that the information highlighted in yellow (apart from the name of the employee which I have addressed separately) ought to remain the subject of the Interim Confidentiality Orders.
RTA.0001.0001.1602[26]
[26] Affidavit of Stephen Leslie Wyatt filed 17 August 2022, 'SW-48'.
This document is a letter from Destec to Rio Tinto dated 12 October 2020.
The defendants seek two sets of redactions to these documents: first, information in relation to the design the first defendant's plant; and second, the number of personnel required on site during operation and maintenance of the plant.
Mr Wyatt's evidence is that the information sought to be redacted disclose the design features of the first defendant's plant. Mr Wyatt says that if this information is provided to the plaintiffs, he believes the plaintiffs would use this information against the first defendant, including by adapting their processes and design of their own plant. In relation to the number of personnel required on site, Mr Wyatt's evidence is that this contributes to the labour costs of Destec, the costs to the client associated with the operation and maintenance of the plant.
The plaintiffs say that this information is not sufficiently confidential to warrant the protection of special orders.
I accept the defendants' submission that the information which they seek to be redacted contains details of the design features of the first defendant's plant.
Consistent with the views that I have already expressed, I consider that this information is commercially sensitive and if this information is revealed to the plaintiffs, it will give the plaintiffs access to information about the characteristics of the first defendant's equipment that the plaintiffs would otherwise not be entitled to.
For these reasons, I consider that the information sought to be redacted by the defendants is sufficiently confidential to warrant special orders being made and that the information highlighted in yellow (apart from the name of the employee which I have addressed separately) ought to remain the subject of the Interim Confidentiality Orders.
Conclusion and orders
For the reasons set out above, it is my view that:
(a)the names and email addresses of the employees of the first defendant should not be redacted; and
(b)the specific redactions sought to be made by the defendants are appropriate and that this information should remain subject to the Interim Confidentiality Orders.
I will hear from the parties as to the precise terms of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
30 MARCH 2023
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