Mineral Resources Limited v Vlajsavljevich [No 2]
[2024] WASC 52
•29 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MINERAL RESOURCES LIMITED -v- VLAJSAVLJEVICH [No 2] [2024] WASC 52
CORAM: SEAWARD J
HEARD: 29 FEBRUARY 2024
DELIVERED : 29 FEBRUARY 2024
FILE NO/S: CIV 2127 of 2022
BETWEEN: MINERAL RESOURCES LIMITED
Plaintiff
AND
MILE VLAJSAVLJEVICH
Defendant
Catchwords:
Practice and procedure - Restriction application - Turns on own facts
Practice and procedure - Harman obligation - Application to use documents produced under subpoena for limited purposes - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 67B
Result:
Restriction application granted
Order partially releasing plaintiff from Harman obligations made
Category: B
Representation:
Counsel:
| Plaintiff | : | R Young SC |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | No appearance |
Cases referred to in decision:
AW v Rayney [No 4] [2012] WASCA 117
Cockburn Cement Limited v Minister for Environment [2019] WASC 9
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
SEAWARD J:
(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations.)
Introduction
This is an application by the plaintiff for orders to be released from the obligation not to use two documents produced by the Commonwealth Bank of Australia (CBA) in response to a subpoena issued in this action dated 8 June 2023 for a purpose other than in connection with this action.
That is, the plaintiff is seeking leave to be relieved of the obligation known as the 'Harman obligation'[1] for the limited purposes outlined in the application.
[1] Referring to Harman v Secretary of State for the Home Department [1983] 1 AC 280 and the requirement that parties do not use documents obtained under compulsion in the course of litigation for any other purpose.
The defendant does not oppose the application.
The plaintiff relies on the Open Affidavit of Timothy Paul Lucas Drok affirmed 15 February 2024, and the Confidential Affidavit of Timothy Paul Lucas Drok affirmed 15 February 2024. I have read and had regard to both of those affidavits for the purpose of these applications.
In relation to the confidential affidavit, the plaintiff has also applied for an order restricting access pursuant to O 67B r 5 of the Rules of the Supreme Court 1971 (WA) (RSC).
For the following reasons, I consider it appropriate to grant the applications.
Restriction order
I will first consider the application made pursuant to O 67B r 5 RSC.
The plaintiff submits that the Confidential Affidavit is a sensitive and confidential document pursuant to O 67B r 10(1)(a)(ii) RSC as it:
(1)identifies third parties;
(2)contains references to information that may be confidential and commercially sensitive information of those third parties; and
(3)annexes documents which contain information that may be confidential and commercially sensitive information of those third parties.
The plaintiff submits that all persons should be restricted from accessing the Confidential Affidavit other than the judicial officer hearing the Application and the plaintiff and its legal representatives, and that the restriction order should effectively be a permanent one.
The plaintiff has complied with the formal requirements set out in O 67B r 5(2).
O 67B r 5(3) provides that the Court may make an order that restricts access to information or record or other thing if it considers -
(1)that the information, record or thing is the subject of a pending claim that it is privileged or confidential; or
(2)that the information, record or thing is privileged or confidential; or
(3)that in the interests of justice, access to the information, record or thing should be restricted.
Relevant to my consideration of the application are the principles of open justice as discussed in AW v Rayney [No 4] [2012] WASCA 117 at paragraphs [29] - [34]. I adopt those principles without repeating them. I have also had regard to the useful summary of some of the matters relevant to the exercise of the power in Cockburn Cement Limited v Minister for Environment [2019] WASC 9.
I am satisfied that the Confidential Affidavit contains information which is confidential, being confidential financial information about various third parties, who are not parties to this litigation. That information is contained in both the body of the affidavit and the annexures.
The restriction order sought by the plaintiff seeks not only to restrict access to the affidavit from non-parties, but also from the defendant. I consider that this is appropriate given that the affidavit and annexures contain information that is confidential to various third parties, and does not appear to pertain to the defendant at all. I also observe that the defendant is aware of the orders sought and has indicated he does not oppose the applications and does not wish to be heard in relation to them.
Accordingly, I am satisfied that the information in the Confidential Affidavit is confidential and of a type which ought not be available to persons other than the plaintiff, and so I am satisfied the relevant prerequisites under O 67B r 5(3) RSC have been made out.
Release from Harman obligation
I now turn to deal with the substantive application for leave to use the two documents produced under subpoena.
Legal principles
The legal principles governing the release of a party from the Harman obligation were recently outlined by the Court of Appeal in Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 at [72] - [74]:
[72]The power to dispense with or modify the Harman obligation is not freely exercised, but will be exercised if there are special circumstances.
[73]In a passage in Liberty Funding Pty Ltd v Phoenix Capital Ltd that has been cited with approval many times, the Full Court of the Federal Court said as follows:
The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
[74]Among the considerations that may be relevant to the exercise of the discretion are:
(a) the nature of the document;
(b)the circumstances under which the document came into existence;
(c) the attitude of the author of the document and any prejudice the author may sustain;
(d) whether the document existed before the litigation, or was created for that purpose and therefore expected to enter the public domain;
(e) the nature of the information in the document, in particular whether it contains personal data or commercially sensitive information;
(f) the circumstances in which the document came into the hands of the applicant; and
(g) the likely contribution of the document to achieving justice in another proceeding.
(references omitted)
Details of the release sought
Documents the subject of the release
On 23 June 2023, CBA produced documents in response in response to a subpoena issued on 8 June 2023.
The documents the subject of the application are a spreadsheet that lists details of payments made to bank accounts in the name of Mr Steven Pigozzo (whether solely or jointly), and a letter that contains the password required to access the spreadsheet and provides a brief description of what the spreadsheet contains.[2] These documents are annexed to the Confidential Affidavit.
[2] Affidavit of Timothy Paul Lucas Drok affirmed 15 February 2024 [7] - [8].
In January 2024, the solicitors for the plaintiff received from the plaintiff details of sales made by several third-party entities to the plaintiff and its subsidiaries from around March 2016 to around December 2023. Those third-party entities are detailed in the Confidential Affidavit.[3] Seven of the payments detailed in the spreadsheet produced under the subpoena contain the names or parts of the names of third-party entities that sold goods to the plaintiff and its subsidiaries.[4]
[3] Confidential Affidavit [5] - [7].
[4] Affidavit of Timothy Paul Lucas Drok affirmed 15 February 2024 [9].
The plaintiff has concerns regarding the integrity of the payments, including in relation to third party compliance with the plaintiff's Supplier Codes of Conduct dated 2020 and 2022.
Reasons for the application
The plaintiff seeks a release to disclose the two documents to officers and employees of the plaintiff for the purposes set out in paragraph 17 of the Open Affidavit, being to:
(1)liaise with the third party suppliers in relation to the payments for the purposes of discussing the plaintiff's concerns and determining whether the third party suppliers have breached any applicable codes of conduct;
(2)consider whether to prohibit further purchase orders being made with the third party suppliers;
(3)if appropriate, commence proceedings against any or all of the third party suppliers and/or other suppliers to the plaintiff and its subsidiaries listed in the spreadsheet; and
(4)if considered appropriate, amend its pleadings in related Federal Court proceedings in light of the payments. For completeness, these related proceedings allege that Mr Pigozzo contravened various provisions of the Corporations Act 2001 (Cth) and duties owed to the plaintiff by reason of his dealings with various third party suppliers to the plaintiff, including two of the suppliers referred to in the Confidential Affidavit.
Attitude of the parties
The defendant does not oppose the application and did not wish to be heard in relation to it.
Disposition
I am satisfied that there are special circumstances why the court should exercise its discretion in favour of the application for the following reasons:
(1)the documents have been specifically identified;
(2)the spreadsheet is relevant to the question of the propriety of seven payments made by three third party suppliers of the plaintiff. These payments are substantial;
(3)it appears that the spreadsheet may be relevant to the question of whether Mr Pigozzo has breached the Corporations Act 2001 (Cth) and his duties owed to the plaintiff as alleged, and may be evidence in relation to any alleged breaches;
(4)it appears that the spreadsheet may be relevant to the question of whether any of the third party suppliers have complied with the plaintiff's relevant supplier codes of conduct;
(5)the plaintiff cannot, without leave of the court, use the documents to discuss or engage with the third party suppliers in relation to the payments to determine whether there have been any breaches of the supplier codes of conduct and to discuss any concerns about the procurement processes. I consider it will further the interests of justice if the plaintiff is permitted to have those discussions;
(6)the plaintiff cannot, without leave of the court, take any follow-up action considered appropriate after those discussions. That may include prohibiting further purchase orders with the third party suppliers; commencing proceedings against the third party suppliers; or amending its pleading in the related Federal Court proceedings. I consider the possible follow-up actions, if considered appropriate to institute, would further the interests of justice; and
(7)whilst the documents contain commercially sensitive information about third parties, the orders sought only permit the documents to be used for the limited purposes specified in paragraph 17 of the Open Affidavit and are to otherwise be kept confidential;
(8)the defendant does not oppose the application; and
(9)there is no discernible prejudice to the author of the document, being the CBA.
In exercising my discretion, I have also considered whether a release should be granted in relation to the whole of the spreadsheet, or only a redacted portion of the spreadsheet.
The spreadsheet is a lengthy document containing numerous transactions. The plaintiff has identified concerns with seven of those transactions. However, the plaintiff seeks to be able to utilise the entire spreadsheet because it is necessary to consider those seven transactions in their complete context. The plaintiff envisages that it may be necessary if taking any further action, particularly in relation to the Federal Court proceedings, to be able to put those seven transactions in context in terms of their value and the other transactions evident on the spreadsheet.
The spreadsheet also does not cover an unlimited period of time. It covers a period from July 2016 until April 2021, which is a period which matches Mr Pigozzo's employment with the plaintiff.
In light of those matters I am satisfied that it is appropriate to exercise my discretion to grant leave in relation to the whole of the spreadsheet, and not merely part of it.
Conclusion and orders
For the above reasons, I will grant the two applications and make the following orders:
1.The plaintiff be released from the obligation not to use the following documents for purposes other than in connection with this action, namely those identified in paragraph 17 of the affidavit of Timothy Paul Lucas Drok affirmed 15 February 2024:
(a)the document titled 'LEA-182692-SUB-PIGOZZO-LETTER' being a letter produced by the Commonwealth Bank of Australia (CBA) in response to a subpoena in this action dated 8 June 2023 (Subpoena);
(b)the document titled 'LEA-182692-SUB-PIGOZZO-STATEMENTS' being a spreadsheet produced by CBA in response to the Subpoena.
2.The confidential affidavit of Timothy Paul Lucas Drok, affirmed on 15 February 2024 (the confidential Drok affidavit) contains information which is confidential to third parties.
3.Pursuant to O 67B of the Rules of the Supreme Court 1971 (WA), access to the confidential Drok affidavit be restricted to all persons except the court, the plaintiff and the plaintiff's legal representatives.
4.Subject to any further order, the restriction order in order 3 is to apply at all times including following determination of CIV 2127 of 2022.
5.There be no order as to costs of this application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
1 MARCH 2024
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